This is the second in our series of blogs about the procedural aspects of sorting out finances on dissolution or divorce. We wrote previously about the exercise of getting together financial disclosure, and now we are going to take a look at the next stage in the process – the run-up to, and attendance at, the first directions appointment at court in your case.
Once the dreaded Forms E have been completed and stated to be true, they are exchanged for a copy of the Form E of your spouse or civil partner. This happens simultaneously, so that one party does not adjust what is in their document in light of what they have read in the other’s.
Both you and your solicitor will then need to work carefully through your spouse’s or civil partner’s Form E. At this stage you’re trying to ensure you understand exactly what the financial position is for them, and this may mean that you need to ask for missing information, query unusual transactions or consider whether there are assets which need valuing by an expert. Often, there are quite a few questions you both want to ask of each other. You ask these questions in a Questionnaire which you send to the other person before the first court appointment. If they have any objection to answering any of the questions, the judge will decide at that first hearing whether they should be answered or not.
In addition, before the first court hearing, your solicitor will prepare a short statement of the major issues that you and your spouse or civil partner cannot agree on, and which impact on the way your assets or income should be dealt with. They will also prepare a chronology of the relationship setting out the timing of key events which assists the judge to get the “big picture” and see at a glance when children were born, properties purchased or businesses started, amongst other things. The final document prepared and filed at court is a summary of the legal costs you each have incurred so far.
(In some cases, it is possible to combine the FDA with the FDR appointment and start negotiating towards possible settlement outcomes. This might happen if, for example, each of you is content that you understand the full financial picture and no further evidence is needed. Here, though, we will concentrate on a situation where one or both of you do not yet feel fully informed.)
The first court hearing is one of those acronyms we mentioned in our previous blog – the FDA, or First Directions Appointment. The purpose of this hearing is to decide what more information you both need, and the court needs, before the two of you can start to negotiate properly and the court process can get to the stage where it can offer you some assistance.
The FDA is often described as “just” a procedural hearing, but is important in legal terms as it deals with the management of your case: the evidence and timetable. It’s also important for you as it may be the first time you go to a court hearing (and see our blog about what to expect from the family court if this is the case). However, be reassured: it is not normal for either of you to speak in court if you have your solicitor or barrister with you. The usual practice is that everybody gets to court in good time to allow the lawyers to have discussions in order to try to agree case management directions and reduce the time actually spent before the judge. Often, many of the directions can be agreed (for example a timetable for preparing replies to each other’s questionnaires), but if not, both lawyers will have to put their case to the judge, who will make decisions.
The case management directions will cover such things as:
- which questions of the questionnaires prepared by both parties will be answered, and by when;
- whether there should be any valuations obtained for properties, other assets or business interests, who the valuer(s) will be and what exactly they should be valuing, and by when;
- whether there needs to be any accountancy evidence concerning, for example, liquidity within businesses, and if so the terms of instruction for the accountant; and
- the timetable for the case between the first hearing and the next court appointment, the FDR, and the date for the FDR hearing (which may be fixed by the court or the court office).
In most cases if the court needs valuation evidence or any other kind of report from an expert to help resolve a dispute between you, the expert is likely to be instructed by both sides to form an independent opinion to assist the court. In very complex cases, the court may allow people to instruct their own experts to present opinions to support their own cases, but this is rare because of the increased costs and court time involved.
The FDA appointment is sometimes referred to as a “housekeeping appointment”. As with many aspects of keeping house (and other domestic chores) its significance can be overlooked as the court makes no decisions about financial outcomes, but it is essential to get the rules for managing your case in place so that matters can run smoothly. Between the FDA and the next court hearing, the FDR, you and your solicitor will be doing a lot of work responding to questionnaires, and dealing with obtaining expert evidence, so that your case is in the best shape it can be and stands a good chance of enabling you to achieve a settlement before or at the next court appointment.
And that will be the subject of the next blog in this series. If you’ve got any questions about anything raised in this blog, do please give Adam, Simon, Gail or Sue a call on 01223 443333.