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This application is made to distribute the marriage assets, whatever and wherever they may be and is lodged with a Family Court Centre. They are categorised as:
- Maintenance for you and/or the Children
- Lump Sum– a capital payment
- Property Adjustment order – a sale or transfer of a home or life policies etc
- Pension Sharing or Attachments
This is referred to as Ancillary Relief because it is made ancillary to the main divorce petition and the Applicant asks the court to grant specific financial relief.
Either party, Petitioner or Respondent, may serve a Notice of Application for Ancillary Relief by completing a ‘Form A’.
The application cannot be made until after the Petition for divorce has been filed.
Attempts to settle matters can be made by either party in an effort to resolve matters outside of Court at any time. This can be done between the parties direct, through formal mediation and/or with the assistance of solicitors. This is difficult to do however until the assets of both parties are fully disclosed. The proposals to settle are made between parties on a "without prejudice" basis. If agreement is achieved, a Consent Order is prepared recording the terms of the settlement. It is signed by both parties and a brief financial details form is completed (Form D81) and these documents are lodged at court to be sealed and any pending Court Hearings cancelled.
This attempt to settle can also be made at any time within the proceedings and indeed before proceedings have even started.
If, for whatever reason, a settlement cannot be reached early, then the following financial procedure may be followed:
This pre-action protocol requires that a Family Mediator is used for parties to attend a Mediation, Information & Assessment Meeting.
The Mediator will make contact with the parties following initial contact.
- Mediators will assist in resolving the matter OR
- Form FM1 is completed to file with the Court declaring that the Assessment Meeting has been attended OR that mediation has not been suitable
Notice of Directions and Hearing
The court sends a copy of the financial application to the other party and sends directions to prepare for the case to both parties, together with notice of a hearing date for both parties to attend court. This is called the First Appointment.
The court requires the various directions to be complied with such as exchange of Financial Statements (Form E) and related disclosure before the First Appointment.
The steps directed by the court to be completed before the First Appointment are:
- Financial Statements
Both parties must complete a Financial Statement known as the Form E. This must detail all assets, liabilities, income and state the party’s capital needs. The form must exhibit certain financial documents to corroborate the statement and it must be signed. The form must then be sent to the other party by way of simultaneous exchanged by a set date as directed by the courts.
If either party wishes to raise questions or require further detail about the other party’s Form E they may prepare a Questionnaire detailing what, if any, further disclosure is required and serve this on the other party.
- Statement of Issues
This is a short document prepared by each party summarising the issues that they believe remain unresolved in the proceedings.
Again each party prepares a document recording in chronological order what they consider are the events that have taken place to date.
- Form G
This form simply gives the court an indication of whether the parties believe the First Appointment can be used as a hearing to attempt a negotiated settlement with the help of the judge. This will be the case where both parties are looking for an early settlement and/or are satisfied with the financial disclosure made by the other party.
First Appointment Hearing
If this hearing cannot be used as a Financial Dispute Resolution hearing then the Court will consider the papers filed in accordance with the previous directions and give further directions on the issues to be dealt with prior to the next hearing within a given timetable.
Financial Dispute Resolution hearing
If at this stage a settlement has not been possible the parties attend court with their representatives and are required to meet at least one hour before the hearing to attempt negotiations to reach an agreement. The judge is used to give guidance and can give indications on they type of settlement that ought to be considered by the parties.
Where a settlement is reached a Consent Order is prepared in court and it is presented to the Judge for approval and sealing.
If a settlement is not negotiated, the Judge will Direct that the case be set down for a Final Hearing.
Many matters are settled either before or at this hearing.
Just before the Final Hearing both parties are required to file with the court what they propose the settlement should be. This time it is not ‘without prejudice’ but open for the judge to see. Again this is in an effort to encourage a settlement to avoid the expensive costs of a Final Hearing and the risks of a Costs Order being made against a party that may have unreasonably rejected sound proposals.
Final Hearing (Trial)
The parties are required to prepare trial bundles with all the relevant documentation and file this with the court. This bundle is then referred to throughout the hearing. Usually both parties are represented by a barrister and both parties are required to give their evidence in person to the court. The Court will make a Judgement stating how the marriage assets are to be divided.
Once the order has been made the assets can be distributed in accordance with it. Where a party fails or delays acting on the order it cannot be enforced by the court until and unless the Decree Absolute of Divorce has been pronounced.
Variations and Appeals
There are various rules guiding any request that may be made by either party seeking to vary or appeal a court order.
Maintenance Pending Suit
After the divorce petition has been filed, an application for maintenance pending suit can be made if required.
This is where it is necessary to ask the court for an immediate maintenance order whilst financial proceedings are still pending. The court can make an interim order and maintenance can start being paid during the proceedings. The Order will be terminated when the petition is made absolute or a final financial order is made, whichever is the earlier.
It is necessary to make a separate claim for child maintenance.