What is a Financial Order in Divorce?
A Financial Order is the term the court uses to describe financial proceedings within a divorce.
In uncontested divorce cases it is the mechanism by which the court can deal with what is known as a consent order.
Applying for a financial order in divorce is called ancillary relief because it is in addition to the divorce and a separate set of proceedings. It is quite a complicated procedure, but has recently been broken down into a series of compulsory steps.
The concept of the new rules is to simplify and speed up the procedure for applying for Financial orders.
Parties to an action will have to abide by a Pre-action protocol dealing with document disclosure and presentation of evidence.
If you have agreed your finances and need a final binding order, you can avoid applying for ancillary relief by having a consent order drawn up which sets out your agreement and then dismisses all future claims between you.
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The pre action protocol sets out guidelines on how the parties should behave towards each other before proceedings are issued. As with all these rules it is written for Solicitors in the main.
What the protocol says
2.1 This protocol is intended to apply to all claims for ancillary relief as defined by FPR r 1(2).
It is designed to cover all classes of case, ranging from a simple application for periodical payments to an application for a substantial lump sum and property adjustment order.
The protocol is designed to facilitate the operation of what was called the pilot scheme and is from 5 June 2000 the standard procedure for ancillary relief applications.
2.2 In considering the option of pre-application disclosure and negotiation, solicitors should bear in mind the advantage of having a court timetable and court managed process.
There is sometimes an advantage in preparing disclosure before proceedings are commenced. However, solicitors should bear in mind the objective of controlling costs and in particular the costs of discovery and that the option of pre-application disclosure and negotiation has risks of excessive and uncontrolled expenditure and delay.
This option should only be encouraged where both parties agree to follow this route and disclosure is not likely to be an issue or has been adequately dealt with in mediation or otherwise.
2.3 Solicitors should consider at an early stage and keep under review whether it would be appropriate to suggest mediation to the clients as an alternative to solicitor negotiation or court based litigation.
2.4 Making an application to the court should not be regarded as a hostile step or a last resort, rather as a way of starting the court timetable, controlling disclosure and endeavouring to avoid the costly final hearing and the preparation for it.
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2.5 The circumstances of parties to an application for ancillary relief are so various that it would be difficult to prepare a specimen first letter. The request for information will be different in every case.
However, the tone of the initial letter is important and the guidelines in Para 3.7 should be followed. It should be approved in advance by the client.
Solicitors writing to an unrepresented party should always recommend that he seeks independent legal advice and enclose a second copy of the letter to be passed to any solicitor instructed. A reasonable time limit for a response may be 14 days.
Negotiation and Settlement
2.6 In the event of pre-application disclosure and negotiation, as envisaged in paragraph
2.2 an application should not be issued when a settlement is a reasonable prospect. Disclosure
2.7 The protocol underlines the obligation of parties to make full and frank disclosure of all material facts, documents and other information relevant to the issues. Solicitors owe their clients a duty to tell them in clear terms of this duty and of the possible consequences of breach of the duty.
This duty of disclosure is an ongoing obligation and includes the duty to disclose any material changes after initial disclosure has been given.
Solicitors are referred to the Good Practice Guide for Disclosure produced by the Solicitors Family Law Association (obtainable from the Administrative Director, 366A Crofton Road, Orpington, Kent BR2 8NN).
The Protocol – General Principles
3.1 All parties must always bear in mind the overriding objective set out at FPR Rule
2.51B and try to ensure that all claims should be resolved and a just outcome achieved as speedily as possible without costs being unreasonably incurred. The needs of any children should be addressed and safeguarded.
The procedures which it is appropriate to follow should be conducted with minimum distress to the parties and in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances.
3.2 The principle of proportionality must be borne in mind at all times. It is unacceptable for the costs of any case to be disproportionate to the financial value of the subject matter of the dispute.
3.3 Parties should be informed that where a court exercises a discretion as to whether costs are payable by one party to another, this discretion extends to pre-application offers to settle and conduct of disclosure. (Rule 44.3 Paragraph 1 of the Civil Procedure Rules 1998).
Identifying the Issues
3.4 Parties must seek to clarify their claims and identify the issues between them as soon as possible. So that this can be achieved they must provide full, frank and clear disclosure of facts, information and documents which are material and sufficiently accurate to enable proper negotiations to take place to settle their differences. Openness in all dealings is essential.
3.5 If parties carry out voluntary disclosure before the issue of proceedings the parties should exchange schedules of assets, income, liabilities and other material facts, using form E as a guide to the format of the disclosure.
Documents should only be disclosed to the extent that they are required by Form E. Excessive or disproportionate costs should not be incurred.
3.6 Any first letter and subsequent correspondence must focus on the clarification of claims and identification of issues and their resolution. Protracted and unnecessary correspondence and ‘trial by correspondence’ must be avoided.
3.7 The impact of any correspondence upon the reader and in particular the parties must always be considered. Any correspondence which raises irrelevant issues or which might cause the other party to adopt an entrenched, polarised or hostile position is to be discouraged. Experts
3.8 Expert valuation evidence is only necessary where the parties cannot agree or do not know the value of some significant asset. The cost of a valuation should be proportionate to the sums in dispute.
Wherever possible, valuations of properties, shares etc should be obtained from a single valuer instructed by both parties. To that end, a party wishing to instruct an expert (the first party) should first give the other party a list of the names of one or more experts in the relevant specialty whom he considers are suitable to instruct.
Within 14 days the other party may indicate an objection to one or more of the named experts and, if so, should supply the names of one or more experts whom he considers suitable.
3.9 Where the identity of the expert is agreed, the parties should agree the terms of a joint letter of instructions.
3.10 Where no agreement is reached as to the identity of the expert, each party should think carefully before instructing his own expert because of the costs implications. Disagreement about disclosure such as the use and identity of an expert may be better managed by the court within the context of an application for ancillary relief.
3.11 Whether a joint report is commissioned or the parties have chosen to instruct separate experts, it is important that the expert is prepared to answer reasonable questions raised by either party.
3.12 When experts’ reports are commissioned pre-application, it should be made clear to the expert that they may in due course be reporting to the court and that they should therefore consider themselves bound by the guidance as to expert witnesses in Part 35 of the Civil Procedure Rules 1998.
3.13 Where the parties propose to instruct a joint expert, there is a duty on both parties to disclose whether they have already consulted that expert about the assets in issue.
3.14 If the parties agree to instruct separate experts the parties should be encouraged to agree in advance that the reports will be disclosed.
3.15 The aim of all pre-application proceedings steps must be to assist the parties to resolve their differences speedily and fairly or at least narrow the issues and, should that not be possible, to assist the Court to do so.
The protocol must be used by Solicitors in all ancillary relief applications and if not abided by can lead to cost sanctions against the firm by the Court.
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The Application for ancillary relief
Following a claim for financial relief having been made in the Divorce Petition, either party may file an application.
Essentially all disclosure of documents on both sides is dealt with early on and contained in a comprehensive statement called “Form E”.
There is then a first Appointment before a District Judge to see what else needs to be disclosed or supplied and to determine what the issues are between the parties and to find areas of agreement leaving only issues in dispute to be dealt with.
Financial Dispute Resolution Appointment (FDR)
The purpose is to hear the issues outstanding and to see if the case can be settled. The hearing is conducted by a District Judge who will not have anything else to do with the case. All FDR discussions are completely privileged so that if agreement cannot be reached the discussions cannot be aired at the final hearing.
Most cases now settle at this stage of the proceedings, when a judge can give his or her view on the likely outcome if they were hearing it.
We have set out below the table provided by The Ministry Of Justice to help you undersand the procedures involved with filing a financial order in divorce:
(please print off if required)
1: TO END OF FIRST APPOINTMENT
|1||Filing of Ancillary Relief Notice (Form A)||Either||Any time after filing of Petition||2.72(1)|
|2||Fixing of First Appointment 10-14 weeks ahead.|
NB: No vacating of date without leave
|The Court||Upon filing form A||2.72(4)(a)|
|3||Service of copy of Notice in Form A||Applicant||Within 4 days of filing Form A||2.72(4)(b)|
|4||Completion and swearing of Statement of Property and Income (Form E) containing:|
|Both||Applicant : any time before step 5Respondent: after receipt of Form A and before Step 5||2.73(1) & (2)|
|5||Filing and Simultaneous exchange of Form E||Both||At least 35 days before First Appointment||2.73|
|6||NO general Discovery before First Appointment||Neither||2.73(3)|
|7||Drafting of a. Questionnaire seeking Further Information b. Schedule of required Documents c. Control Statement of apparent issues||Both||Any time after exchange of SPI.|
(During 28 day period before next step)
|8||Filing and service of a. Questionnaire|
b. Documents Schedule
c. Statement of issues
d. Confirmation of service under FPR 2.59(3) & (4) (if appropriate)
|Both||At least 7 days before First Appointment||2.73(4)|
|9||Produce first written Solicitor/ own client costs estimate||Both||Immediately prior to First Appointment||2.76|
|10||THE FIRST APPOINTMENT|
Objective: to limit issues and save costs
|Both parties and all legal representatives to attend||On date fixed 10-14 weeks after filing of Form A (Step2)||2.74|
|Directions:a. As to answering Questionnaires and producing documents; and as to future and updating documentation||2.74(1)(a)|
|b. Valuations & experts (joint if practicable)||2.74(1)(b)(i)|
|c. Other evidence (this may be for affidavits if the issues seem to warrant them), chronologies, schedules||2.74(1)(b)(ii) &(iii)|
|DJ shall then:|
1. Direct “FDR” (this will be the norm)
|Date for FDR on Form C||2.74(1)(c)|
Adjourn for mediation, negotiation or generally
|The DJ may in addition|
3. Make urgent Interim Order
4. Treat as FDR (with parties’ consent)
PHASE 2: TO END OF “FDR” APPOINTMENT
|11||Direction Orders made at First Appointment to be executed(e.g. Answering questionaires, valuations etc)||Both||As per directions order and before FDR|
|No further discovery without leave|
(less appropriate in a complex case)
|Both||By at any stage application||2.74(2)|
|12||Where FDR has been ordered: Notice to Court of all offers, proposals and responses||Applicant||7 days before FDR||2.75(1)(b)|
|13||Where FDR has been ordered: Produce second written solicitor/ own client costs estimate||Both||Immediately prior to FDR||2.76|
|14||THE “FDR APPOINTMENT”|
Objective: Best endeavours to reach agreement
|Both parties and all legal representatives||On date fixed at First Appointment|
(Step 10) (Form C)
• Conducted by a DJ who will not have anything else to do with the case
• All FDR discussions are completely privileged
• No privilege can attach to any prior offer at the FDR
• No offer documents to be kept on Court file
• Adjourn from time to time
• Make appropriate consent order
• Give further directions
• Fix final hearing
PHASE 3: TO FINAL HEARING
|15||Directions Orders made at FDR to be complied with appropriately||Both||As per directions order and before FDR|
|16||Statement of Open Proposals|
|b. File with Court and serve on other party||Applicant||14 days before final hearing||2.77(1)|
|Respondent||7 days after receipt of Applicants statement||2.77(2)|
|NB. No privilege can be claimed in relation to these open proposals||Practice Direction|
|17||Further Directions / FDRs|
A written statement of solicitor/ own client costs must be produced at each such appointment
|Either or Court||At any time||2.74(3)2.76|
|18||THE “FINAL HEARING”|
NB: Final costs estimate required
|On date fixed at First Appointment (Step 10) (Form C) or FDR (Step 14) or otherwise (Step 17)|
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