When Should You Show Your Hand

Proceedings in the family court are very different from civil proceedings.  They are dealt with under a different set of rules. In civil proceedings, the court requires a ‘cards on the table’ approach, and will then make a finding based on the evidence put before the judge. The role of the judge in family proceedings is different, and the objective is to impose a fair settlement on the parties rather than to choose between them on the facts presented. This was explained by a senior judge as:

‘…the judicial task [in family proceedings] is very different from the task of the judge in the civil justice system, whose obligation is to make findings on all issues in dispute relevant to outcome. The quasi-inquisitorial role of the judge in ancillary relief litigation obliges him to investigate issues which he considers relevant to outcome even if not advanced by either party. Equally, he is not bound to adopt a conclusion upon which the parties have agreed.’

In civil proceedings a party will start matters off by filing a statement of claim, which will set out his case and what he is asking for. In family cases there is no statement of claim or indeed any other formal pleading to set out what is being claimed. The reason for this is that until each party have fully disclosed their assets, the next stage of how they can be distributed cannot be reached.

To a certain extent this is in conflict with the pre-action protocol contained in the Family Proceedings Rules. This requires parties to:

‘…clarify their claims and identify the issues between them as soon as possible… openness in all dealings is essential.’

When then should you make clear what you are looking for out of the marriage?

The first stage of matrimonial financial proceedings must always be disclosure. This is done on Form E. This prescribed form allows a party to summarise their case on standard of living, contributions, conduct (paragraph 4); and gives the party the option (‘…if you are able at this stage’) to set out the orders they seek (paragraph 5). However, save for in straightforward cases, Form E does not sufficiently allow you to set out your case.

The standard directions contained in the Family Proceedings Rules require the filing of a brief statement of the issues and points of dispute before the first appointment. This will be considered by the judge alongside each parties’ Form E and will go some way to set out your case and the settlement you are looking for. There is no provision however for skeleton arguments all place to argue your case.

If matters are not resolved at the first appointment by agreement, mediation or arm-twisting by the judge – the rules require a position statement and all offers of settlement to be filed with the court seven days before the next stage which will be the financial dispute resolution (FDR) hearing. Further evidence and court bundles may also have to be filed, depending upon directions given and the court and complexity of the matter. In the rare few cases which still do not settle and go on to a final hearing, open proposals for settlement must be exchanged and sent to the court at least 14 days before the hearing date.

All this results in a fine balancing line. A fair settlement cannot be reached until there has been full disclosure and everybody knows the totality of the ‘pot’. However, set against this are the advantages of an early settlement to reduce the upset, trauma, and probable cost of a protracted dispute. The sooner things are settled, the better so that parties can get on with their lives. What must be guarded against is your spouse on the other side (or often his/her legal adviser) procrastinating and causing unnecessary delay. If this seems to be happening ask the court to make specific directions. For example, at the first appointment it may be useful to ask the court to direct a schedule of assets and order that further statements of issues and position statements be filed. If your opponent’s position is unclear or seems uncertain, you should request that a narrative statements be filed.

The key to good matrimonial financial proceedings must therefore be to ensure you give your disclosure quickly and fully and to make sure this is reciprocated by the other side. Then, once this is established to make your position clear, put forward your proposals for settlement and force your opponent to do the same. Then negotiate if necessary, compromise if you must but get it settled.




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