Relationship breakdown is often accompanied by stress and financial upheaval. Children can become caught in the crossfire and careful strategy is required to avoid this. By gaining a clear understanding of clients’ aims and the issues involved we are able to focus on minimising unnecessary hostility and successfully resolving even the most complicated domestic and international matters. We provide advice that is realistic, objective and commercial, whilst keeping our clients’ interests and those of their children first and foremost at all times.
This guide provides guidance on the procedures involved in the three main areas of family litigation: divorce, children and financial proceedings. It should assist your understanding of the legal process, the steps that can be taken and how these different legal areas relate to each other.
The grounds for divorce
The irretrievable breakdown of a marriage is the only basis for divorce in England. This is established by demonstrating the other party’s adultery, unreasonable behaviour, desertion for two years, a separation for two years with the other spouse’s consent or a separation for five years.
To avoid unnecessary hostility there is no longer a requirement to name a co-Respondent in adultery proceedings.
Satisfactorily proving unreasonable behaviour involves citing a few particulars of the other party’s conduct. As the test of whether the behaviour is unreasonable is subjective, it is usual to draft the particulars in anodyne terms. It is also usual, unless there are particular reasons not to, to attempt to agree the allegations with the other spouse or their solicitors before proceedings are issued. This is intended to minimise hostility and to avoid the possibility of the allegations being denied and the divorce proceedings becoming defended.
The divorce Petition is lodged at Court with a form setting out the proposed future arrangements for any relevant children. The original marriage certificate is also sent to the Court where it is retained. If the original marriage certificate has been mislaid, a certified copy must be obtained from the Registrar.
The divorce Petition contains an application for all forms of “ancillary relief ” (financial claims) on behalf of the party applying for the divorce (the “Petitioner”) and any children.
The Court takes three or four days to issue the divorce Petition, which is then served on the other spouse (the “Respondent”) who has up to 29 days (or longer if they are served outside of the UK) in which to confirm they have received the Petition and to state whether or not they will defend the proceedings.
Should the Respondent decide to defend the proceedings, there will be a directions appointment at which, generally, the Court tries to broker an agreement. If that is unsuccessful, a trial will take place at which both parties and any witnesses will attend to give evidence. Members of the public are allowed to sit in Court during the trial.
If the proceedings are not defended, the Petitioner makes a sworn statement that the contents of the divorce Petition are true. When that statement is sent to the Court, the Judge checks the papers and, if satisfied that they are in order, will set a date (about a month later) for the first decree of divorce, the “decree nisi”.
The decree nisi is pronounced in open Court, although the parties need not attend. The sworn statement in support of the application for the decree nisi is a public document. Other than that, undefended divorce proceedings are held in private and the public does not have access to the Court file.
Six weeks and a day after the decree nisi has been pronounced, the Petitioner can apply for the decree absolute which dissolves the marriage. It is usual, however, to wait until financial matters have been resolved before applying for the decree absolute so that spousal benefits under any pensions or life policies are not lost if one party were to die in the meantime. If the Petitioner fails to apply for the decree absolute, the Respondent can apply after another three months has elapsed. However, the Respondent must apply to the Court on notice to the Petitioner, which entails a hearing before a Judge.
CHILD CARE ISSUES
In some instances, separating parents are unable to reach agreement regarding care arrangements for their children and it is necessary for the Court to adjudicate on disputes regarding various aspects of child care.
Contact is sometimes known as “access”. Contact proceedings can concern the long-term arrangements or the short term position (such as access on specified dates).
This is sometimes referred to as “custody”. A residence order determines with whom a child is to live. The Court can make joint residence orders so that a child lives for part of the time with one parent and part of the time with the other parent.
Occasionally specific issues arise in relation to the child, such as the school they should attend or whether they should be brought up observant of a particular religion. If agreement cannot be reached the Court can make an order determining the issue.
If one parent proposes a course of action with which the other parent objects (such as taking the child overseas), the Court can be asked to prohibit the taking of that step.
Permission to permanently take a child abroad
Where one parent wishes to take the child to live permanently in another country, the other parent’s consent is required. In the absence of consent, it is necessary to apply for the Court’s permission.
Parental responsibility is defined as all the rights, duties, powers and responsibilities which by law a parent of a child has in relation to the child and his or her property. The Children Act 1989 provides very little further guidance as to what is envisaged by the term and the Courts have therefore interpreted it to describe a ‘bundle of rights’ associated with parental decision making and control.
A mother automatically has parental responsibility for her child. A father will also automatically have parental responsibility if he is married to the mother or he is named on the birth certificate. If a father does not have parental responsibility, the mother can grant it to him. If she refuses, the father may apply to the Court for a parental responsibility order.
The procedure for each of these applications is the same. After the application has been made to the Court a “conciliation appointment” is listed to take place about six weeks later.
The conciliation appointment is presided over by a District Judge together with an officer of the Children and Family Court Advisory and Support Service (CAFCASS). The purpose of the appointment is for the Judge and the CAFCASS officer to mediate an agreement between the parties to resolve the disagreement. Both parties must attend the hearing at which they may be expected to speak. The Judge may also suggest that the parties go to a separate room with the CAFCASS officer to explore issues further with a view to reaching an agreement.
If an agreement cannot be reached, the Court will make directions setting a timetable leading to a final hearing. Directions will include the service of witness statements, if necessary commissioning expert evidence (for instance medical evidence) and fixing a date for the final hearing. Additionally, a CAFCASS officer will be directed to interview the parties (and, if old enough, the child) and prepare a report for the Court. Between the conciliation appointment and the final hearing, witness statements will be served and CAFCASS will provide their report and recommendations. This sometimes leads to an agreement being reached, although occasionally cases proceed to a final hearing.
The final hearing will usually take place five to eight months after the conciliation appointment. If the final hearing is listed for five days or more there will be a further directions hearing that takes place about two months before the final hearing (called a pre-trial review). This enables the Court to assess whether any further steps are necessary to prepare the case for trial.
The final hearing will involve both parties and any witnesses attending Court and giving oral evidence. The hearing takes place in private and members of the public and the press have no access to these hearings or the documents.
At the end of the hearing the Court will make its order. It is unusual for there to be any costs orders made in proceedings of this type. Each party is usually expected to pay their own costs.
Privacy of documents
Unlike other Court proceedings, documents produced for and used in proceedings relating to a child belong to the Court and not the parties. The parties are not at liberty to disclose them to any third parties, other than their legal advisors, without the Court’s permission.
Financial Issues on Divorce
Our primary aim is to achieve a negotiated settlement. If this is not possible, Court proceedings may be necessary. Should this be the case, the proceedings will have three distinct stages.
Stage One: to the First Appointment
Once a Petition has been issued, an application for “ancillary relief ” (known as a “Form A”) can be issued and a date will be given for the first Court hearing (known as the First Appointment). The First Appointment will usually take place 14 to 18 weeks after the Form A is issued. Once the Form A is issued, the Court imposes a timetable for both parties to make financial disclosure. Five weeks before the First Appointment, each party swears a sworn statement called “Form E”, which is the standard Court form on which disclosure is made. The Forms E are then exchanged along with a number of supporting documents, such as bank statements, salary advices and company accounts, which have to be provided with them.
Three weeks later (two weeks before the hearing), each party serves on the other a statement of the issues in the case, a chronology and a questionnaire. The purpose of the questionnaire is to seek further information or documents arising from the disclosure made in and with the Form E.
The First Appointment takes place in private before a District Judge who will decide the further orders necessary to progress the case. For example, if asset values cannot be agreed it is usual for the Judge to order professional valuations of properties and shareholdings in private companies. The Judge may also transfer the case to the High Court if there are complex issues involved. In all cases, a date will be set for the next hearing.
Stage Two: to the FDR
The next hearing is known as the “Financial Dispute Resolution Appointment” (FDR). It usually takes place three to five months after the First Appointment. There will be a longer delay if the case is particularly complex, or if it is transferred to the High Court. Again, the hearing takes place in private.
In between the First Appointment and the FDR, each party will comply with the Court’s directions, including replying to the other’s questionnaire, and, if necessary, valuations will be obtained. There is a positive duty on each party to negotiate. Conventionally, the paying party (usually the husband) is expected to make the first offer, to which the other party (usually the wife) responds. In this way, each party should have set out their position in writing prior to the FDR.
The FDR is a “without prejudice” hearing. The emphasis is on openness and, if the case does not settle, neither party can subsequently rely on anything that was said at the FDR. The Judge who conducts the FDR will not be allowed to be involved in the case again. Most cases settle at, or shortly after the FDR.
The Judge does not assess the evidence in detail, but instead explores whether a settlement can be reached. The Court has no power to make any orders at the FDR in relation to settlement other than by agreement.
If terms of settlement cannot be agreed the Judge will give directions necessary to prepare the case for trial. The exchange of further questionnaires may be directed and both parties will be ordered to set out their case in sworn statements.
Stage Three: to the final hearing
Final hearings usually last between two and five days, occasionally more depending on the complexity of the case. The hearing usually takes place some six to eight months after the FDR or longer if is to be a very lengthy trial.
If the final hearing is to last more than five days, there will be a directions hearing at Court some two months before the hearing, in order to review whether further case management directions are necessary.
At the final hearing, after hearing the oral evidence from the parties, any witnesses and experts, the Judge will decide whose evidence is preferred, give judgment and make a final order. There may be a delay of some weeks in the Judge making his decision, while he considers the case. Should this happen, there will be a further hearing at which the Judge will formally hand down his judgment.
After the judgment has been given any arguments about costs, and who is to pay them, may be heard.
In addition to the three main hearings set out above, other applications may be made if necessary. These include freezing orders (where there is evidence that assets are being, or have been, moved to avoid one party’s claims), orders for third parties to disclose information and interim maintenance orders.
Privacy of hearings
All Court hearings in ancillary relief (except appeals) take place in private, which means that members of the public have no access to the Court hearings, or the documents on the Court file.