The starting point in dividing up the matrimonial assets is an equal split- 50/50. This will, however, be varied depending upon the individual circumstances, the needs of both you and your spouse after the marriage and in particular the requirements of  children. Where there are children, proper provision, and in particular providing a suitable home for them, will be a prime objective. However, unlike cases concerning children brought under the Children Act, the children’s welfare is not the overriding objective in matrimonial financial proceedings. The conduct of the parties will have little place, unless it is gross and extreme.

Applications for financial orders can be made by either the petitioner or by the respondent. In both cases, application is made using Form A

The duty of the court when deciding financial disputes

There is no defined formula, and therefore there can never be certainty about what a court will order. The courts have a very wide discretion as to the orders which can be made when making financial orders in divorce proceedings. It is usually quite irrelevant whose name matrimonial property is in, and if it is a long marriage it will matter little how property was acquired. It is also quite irrelevant who presented the divorce petition. The court is, however, required to take certain matters into consideration, and these are set out in Section 25 of the Matrimonial Causes Act 1973. This important section requires that:

“It shall be the duty of the court in deciding whether to exercise its powers…. to have regard to all the circumstances of the case, including the following matters:

• the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
• the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
• the standard of living enjoyed by the family before the breakdown of the marriage;
• the age of each party to the marriage and the duration of the marriage;
• any physical or mental disability of either of the parties to the marriage;
• the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
• the value to either of the parties to the marriage of any benefit (for example, a pension) which … (by reason of the divorce) ..that party will lose the chance of acquiring.”

An important principle is that in matrimonial financial proceedings there must always be full disclosure by both parties of their assets. This will be the first step so as to calculate what is in the ‘pot’ for division.

Form E is the 27 page prescribed court form for disclosing the required financial information to enable the court (and the other side) to fully understand each party’s financial position. Disclosure of financial information by both parties is always the first stage in resolving financial disputes. You cannot decide the division of matrimonial assets until you know what is in the ‘pot’ for division.

The First Directions Appointment (FDA)

It is essential that you attend the FDA. It is sometimes referred to as a ‘housekeeping appointment’ but is also a head banging session.  The purpose is to define the issues, decide on any issues that need to be resolved, deal with documentary evidence and give further directions. It is not to hear evidence or make any decisions other than administrative ones over the case. A district judge will also wish to hear what attempts have been made to agree a settlement of the issues. He will encourage this and where it is possible can make a final order to bring the proceedings to an end.

The Financial Dispute Resolution Appointment (FDR)

Where agreement has not been possible the court will fix a FDR. This is intended to lead the parties to a settlement by exploring common ground. At this hearing, a district judge will express an opinion and tell the parties what he would order, if asked to decide. Cold water is likely to be poured upon unrealistic expectations.

Everything said at the FDR is ‘without prejudice’. Anything said, either in front of the judge or in negotiations between the parties, cannot be referred to if the case proceeds to a trial and final hearing. This allows you to make genuine attempts to settle, without fear that concessions will be used against you, and encourages people to move away from their stated positions. It also means that the judge who deals with the FDR can have nothing further to do with the case.

The Final Hearing

This is the hearing where evidence is heard, and if you and your ex can still not reach a settlement between yourselves, the court will make the decision for you and decide how your matrimonial assets are to be divided up.

There is a set structure for conducting a final hearing. The applicant (or their representative) will address the judge first, and take him or her through their skeleton argument and the basic facts and background to the dispute. The respondent will then do the same.

The parties then give their evidence with the applicant going first. The applicant’s evidence will be in confirmation of the contents of their Form E and any other relevant evidence as in their witness statement. It is then for the respondent  to cross-examine the applicant, usually focusing on matters that are in dispute between them. Then the process is reversed, with the respondent giving evidence, cross-examination and sometimes further questions from their representative to stress certain points. During this process, the judge may also ask questions of the parties and will usually do so.

Both parties can expect to be asked about their personal circumstances, financial affairs, earning potential, household expenditure, and about a new partner, if they have one. It is not a pleasant experience but necessary, to assist the judge to get to the truth and make the best decision. It is best to give concise and honest answers. Judges are not impressed by evasive or incomplete answers.

After the court has heard from the parties, if there are expert witnesses, such as accountants or valuers, they will give their evidence and be asked questions. Finally, each side will make their closing arguments, in which they sum up the evidence and put their strongest case to the judge.

The judge then has to decide 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, and you will need to come back to court to hear the judgment.

It is rare for anyone to get everything they want from a final order, made after a final hearing in financial proceedings on 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.