What happens if I can’t agree a divorce settlement?

An outline of financial remedy procedure

When you divorce you will of course have to sort out a financial settlement with your spouse. Obviously, you should try to agree the settlement with your spouse, whether directly, through lawyers or in mediation. But what if you are unable to agree matters?

Then you will need to ask the court to sort out the settlement for you. The procedure to do this is called a ‘financial remedy application’. The court will gather all of the relevant evidence, including details of the means and assets of both parties, and will decide upon an appropriate settlement.

A financial remedy application essentially proceeds in six steps:

Step 1 – Before the application

Before a financial remedy application is issued, the court will expect the parties to follow a ‘pre-application protocol’. The protocol outlines the steps parties should take to seek and provide information from and to each other prior to the commencement of the application. The idea behind the protocol is to ensure that efforts have been made to settle without going to court, although if it is clear that progress is unlikely to be made without the intervention of the court then you may proceed with the application.

You will also usually need to attend a Mediation Information and Assessment Meeting (‘MIAM’) before you issue the application. The purpose of the MIAM is to assess whether the case is appropriate for mediation. For more information about MIAMs, see here.

Step 2 – Issuing the application

The application is issued by filing with the court a ‘Form A’, together with the appropriate fee (currently £255). The court will then send a Notice of First Appointment to both parties. The notice fixes a date for the First Directions Appointment (see below), and sets out a timetable for the next steps that each party must take in the proceedings.

Step 3 – Form E

The first of those steps is that each party must file with the court and serve upon the other party a Form E Financial Statement. The statement should set out full details of the means of that party, and certain relevant documents, such as recent bank statements, must be attached to it.

Obviously, a party may file a Form E that is incomplete, or that raises matters that require clarification. Each party may therefore send to the other a questionnaire, requesting further information or documentation.

Step 4 – First Directions Appointment

The First Directions Appointment, or FDA, is the first hearing in the procedure. The purpose of the appointment is to ensure that both parties have made full disclosure of their means, and that all relevant information is available, such as valuations of assets, so that the case can proceed.

If the case can proceed, then the FDA can be used as a Financial Dispute Resolution (‘FDR’) hearing (see below), if the court has time. If the case cannot proceed, then the court will give directions as to what needs to be done before it can, and will also fix a date for the FDR.

Step 5 – Financial Dispute Resolution hearing

The aim of the FDR is to enable the parties, with the assistance of the judge, to identify and seek to resolve the issues in the case. The judge will encourage the parties to negotiate, if appropriate, and may give an indication of what they think would be an appropriate settlement in the case.

If the parties cannot agree matters, then the court will fix a date for a final hearing.

Step 6 – Final hearing

At the final hearing the judge will listen to all of the evidence from both parties, and make a final decision. The decision will be incorporated into a court order, which will be binding upon the parties.

For further details regarding financial arrangements and divorce, including the principles that the court uses when making financial remedy decisions, see this page.

As stated, the above is only an outline of the procedure. For more detailed advice regarding the procedure and principles involved in financial remedy applications, and how they apply to your case, you should consult an expert family lawyer.