The final (hearing) countdown

By 27 March 2013FAQ, financial, the family courts

At CFLP we are committed to resolving disputes, if possible and appropriate, without getting to a fully contested final hearing (as are all members of Resolution). We have not yet met a client who has enjoyed the experience of a court trial regarding financial matters arising from a divorce: they can be stressful, upsetting and expensive. However, in some cases and for various reasons, getting a judge to decide how to divide the money between former spouses or civil partners is the only option. Here we take a look at the final hearing and its mechanics.

At the Financial Dispute Resolution Hearing, if there is no agreement, the judge will have decided how long the final hearing is likely to take. One day of court time is standard for relatively straightforward cases which do not involve complex issues. Two or three days is normal for those with complexities requiring the attendance of experts at court. Exceptional cases may be listed for longer.

Cuts to the court service and an overburdened, creaking system means that there will be several months between the FDR and the Final Hearing. It varies from court to court, but delays are endemic nationwide. Therefore by the time the people involved get to a final hearing, it may well be well over a year since proceedings started. However, the gap between the FDR and final hearing at least leaves time available for discussion or mediation to see if any issues can be resolved – even though the final hearing has been put into the court’s diary, there’s scope to remove it if things are sorted out in the meantime.

At the FDR, case management directions will have been agreed and incorporated into a court order, showing what must be done before the judge can make a final decision. Both people will have to update their financial disclosure so that there is an accurate and current picture of the family’s finances. You may also be required to prepare a statement dealing with key matters that you can’t agree about. Of course, this is something which your solicitor will work with you on, as it is an important evidential document.

Barristers are usually used for Final Hearings because they are specialist advocates. You are likely to have a meeting (called a conference) with your solicitor and barrister before the hearing to discuss the case, your approach to it, and everyone’s expectations of how it will run. It is important that you are happy with the barrister instructed to represent you, and this is something to consider carefully with your solicitor.

There is a set structure for the way that Final Hearings run. One of the parties will have commenced financial proceedings all those months ago by filing an application (called a Form A). This person is the applicant, the other is the respondent. (It’s worth noting that the applicant will not necessarily be the same person who filed the divorce or dissolution petition, as the two processes are separate in legal terms.) The applicant’s barrister will address the judge first, and take him or her through their “skeleton argument”, an outline prepared by the barrister to cover the basic facts and background to the dispute. The respondent’s barrister will then do the same.

The people involved – “the parties” – then give their evidence under oath from the witness box, and the applicant goes first. The applicant’s barrister will start by asking a few straightforward questions, mainly confirming that the applicant is aware of the contents of their Form E and any other evidence. The respondent’s barrister then has the opportunity to cross-examine the applicant, usually focusing on matters that are in dispute between the parties. Finally for this round, the applicant’s barrister will ask the applicant a few more questions if necessary to help clarify any issues which became may have become confused under cross-examination. Then the process is reversed with the respondent giving evidence – opening straightforward questions from their own barrister, cross examination by the applicant’s barrister and a re-examination by their own barrister. During this process the judge may also ask questions of the parties, or their barristers.

Both individuals can expect to be asked about their personal circumstances, financial affairs, earning potential, household expenditure, and about their new partner, if they have one. Most people find this an unpleasant invasion of privacy, but it is a necessary part of the English family court process which assists the judge to get to the truth and make the best decision he or she can. The best approach is to give concise and honest answers. Judges are not impressed by evasion, or by parties arguing with the barrister questioning them.

After the court has heard from the parties, if there are expert witnesses, such as accountants or valuers, they will present their evidence and be asked questions by the barristers. Finally, both barristers will present their closing arguments. This is where they sum up the evidence, and each put their client’s case at its strongest to the judge.

The judge then has to work out what order to make. He or she usually needs some time to consider this. In simple cases, a judge may take an hour or so to consider and prepare a judgment. In more complex cases a judge will need longer, and judgment may be given after a few days – if so, the parties and their legal teams will need to come back to court to hear the judgment..

In our experience, it’s rare that anyone gets everything they want from a final order made by the court in financial proceedings after divorce. A final court order is a compromise imposed by a judge, and an expensive exercise to go through for a compromise about which you have no choice. This is why we at CFLP try to investigate possibilities for settlement on acceptable terms at every stage, and to keep open the channels of communication throughout the process.

If you would like to discuss anything raised here, do give Gail, Adam, Sue or Simon a call on 01223 443333.

 

Join the discussion One Comment

  • Chris says:

    Hi,
    What will happen if there is an agreement between both parties at the FDR prior to final hearing but one of the parties did not comply with the written agreement? To make it clear, this is the case: The applicant agreed with the negogiation of the respondent to pay a lump sum of £10,000 on or before, for example 31st December. Unfortunately the respondent did not pay the applicant on the date she promised on the written agreement and her solicitor did not even send an apology letter that will explain the reason for the delay. Is it possible to re-open the case or request for reconsideration hearing or proceed to the final hearing?

    I noticed from my experience that if you attend a court hearing like this FDR, the party with a solicitor always win the case versus self-representation. Possibly the judges know their own local solicitors, and from my experience the judges did not even give me a chance to speak when I represent myself without a solicitor.

    I consulted a lot of solicitors with a free consultation. They all have the same advice that I am entitled to get at least 1/3 of our matrimonial assets. I even sent the draft of letters from those solicitors to the court when I filed my settlement offer but still I ended up with nothing. Sometimes the judges have unfair decisions.

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