Resolving the financial issues in divorce (5)

How long does divorce take in the UK? If there is one issue which can prolong a divorce it is resolving the financial issues arising from the marriage.  Please note this will not delay every divorce. However, it may delay those divorces where one spouse would suffer prejudice if decree absolute was pronounced before financial issues were formally settled. Such a spouse is able to insist upon blocking decree absolute until the financial issues are settled. This does not apply in every case of divorce but it occurs sufficiently often to need mention. If you have such a spouse then it is probably wise to make a formal application to the court to resolve the financial issues as soon as possible. In this way you can secure a determinate time table to ensure the issue is settled and you obtain a divorce. Not heeding this advice is why some divorces last years. That should never happen but measures need to be taken to ensure that situation does not arise.

If the parties have not been able to come to an agreement about financial matters at the outset or if the initial exchange of financial information does not look as though it is going to be productive of a speedy settlement it is normally wise to make an application to the court to determine the matter. This is not to say that the issue will inevitably have to be heard before a judge because very many of these applications are settled without the parties ever going to court but at least it does begin a timetable which will result in the issues being resolved. In the last resort, if the parties cannot come to an agreement, a court will be asked to decide. The very fact that both parties know that if they do not reach agreement a court will decide the matter for them is a powerful incentive to reach agreement which is absent from purely voluntary negotiations.

In the meantime it means that the court can issue “directions” about how it wants the matter dealt with and, in practice, what this means is that a timetable can be imposed upon the whole process. It is normally better to do this than to allow correspondence between solicitors to continue indefinitely. To start the procedure off one of the parties to the divorce has to make an application to the court for financial orders – ie to have the financial issues settled. In order to do this one has to pay a court fee and make an application in the proper form. It is important to understand this does not happen automatically just as a result of issuing a divorce petition. A separate application needs to be made.

When the court receives this application it will make “directions” (which are more or less automatic but the exact wording of which may vary from court to court) telling the parties what they are to do next. Usually these directions will specify various time limits within which certain things must be done. Most importantly the court will order each party to complete a formal document which sets out their respective financial circumstances. This now done by means of what is called a “Form E” which is a form of about thirty pages in length. The form asks various questions about the party’s financial circumstances and also asks that copies of various documents such as bank statements be supplied. The directions will normally specify that the document needs to be completed within a certain time (rarely less than 28 days) and then it should be sent to the other side and also to the court. This completed Form E is a central document to the whole proceedings and it should be filled out carefully and completely. If this is not done it almost always causes complication and delay at some later date and may well have costs consequences for the person in default.

The directions will also deal with various other matters. In fact they will normally direct that once the forms have been exchanged the matter should be listed for what is called a “First Appointment”. This will give the court the opportunity to consider what should be done next and what steps need to be completed by what date. This process ultimately leads to the setting of the case down for hearing and decision by a judge if in the meantime the parties have not been able to reach agreement about a settlement. The courts take a very active role in these proceedings and will generally wish for matters to be dealt with as soon as possible so that the opportunity for delay is limited. The court will set down time limits etc for the exchange of documents (which will probably be copies of bank statements, tax returns, pay slips etc) which the parties intend to rely upon in evidence. Most importantly, the court will say that after these steps have been complied the matter will be set down for hearing before a judge (and they will set out the formalities for doing this).

It can be seen that once this process has started the scope for delay is limited. If one of the parties does not comply with his/her obligations under the directions the other can apply to the court for an order directing compliance (and in the last resort a court can order imprisonment if its directions are not complied with). Although this whole process can take some time it should be a timescale of months and no longer. It is a rare case which takes more than twelve months to resolve even if everything is contested and the timescale in the majority of cases should be shorter than this. Nevertheless, matters rarely flow absolutely smoothly and there are typical problems which tend to recur.

You should not, incidentally, think that a case will end up being contested even if it has got so far as having a hearing date fixed. Firstly, there is almost always a hearing called a Financial Dispute Resolution meeting (FDR) and the purpose of this hearing is to see whether agreement can be reached on a voluntary basis. This frequently happens. Even if this is not successful at the final hearing of ancillary relief applications (as opposed to the various “directions” appointments which might take place before then) both parties are usually represented by a barrister who will present their case to the court. Each barrister may well have seen the papers for the first time about a week or so before the hearing and, of course, is able to bring a fresh mind to the problem (assuming he/she was not previously involved at the FDR). Partly for this reason it is often possible to broker an agreement at the very doors of the court. If the judge is informed that the parties are in negotiation he/she will almost always allow them sufficient time to conduct these negotiations.

These last minute settlements are quite common because the thought of going into court tends to concentrate everyone’s mind and, of course, no-one can ever be absolutely certain of how a judge will decide a case. Many people, therefore, prefer the certainty of an agreed settlement to the risk of letting the judge decide. If the case does not settle at this point (as very many do) it is then a question of going into court, giving evidence and asking the court to decide. This only happens in a relatively small minority of cases in UK divorce law.

Please continue in order to find out more about how long divorce takes when an application for financial orders is involved .

Spouses involved in divorce in England always want to know on what basis the UK divorce law decides financial issues between husband and wife if the Courts have to decide the issue. Indeed, this is what is at the heart of most divorce cases. If there is a dispute it is more likely than not to be about money whether that is about periodical payments for a spouse, dividing the equity in the former matrimonial home or divorce and pensions. In fact, the relevant principles are set out in Section 25 of the Matrimonial Causes Act 1973 which, essentially, reads:-

”It shall be the duty of the court in deciding whether to exercise its powers ….. to have regard to all the circumstances of the cases, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

25 (1) It shall be the duty of the court in deciding whether to exercise its powers …. to have regard to all the circumstances of the case including the following matters, that is to say –

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) …the value to either of the parties to the marriage of any benefit (for example, a pension) which … (by reason of the divorce) ..that party will lose the chance of acquiring;…”

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