When court action becomes necessary in divorce casesJanuary 27th 2020
Court action is generally considered to be a last resort in divorce cases. It’s much better to reach an amicable agreement over how you should divide the marital assets and reach a financial settlement.
If that proves difficult, your solicitor is likely to suggest that you try mediation, arbitration or collaborative law services to overcome any problems.
Sometimes, however, court action becomes unavoidable.
This could be for several reasons. For example, one spouse may be holding out for an unfair and unreasonable settlement. Or it may be that they are withholding key financial information, or it may just be that the whole negotiation has become too complex and so has to be put before a judge.
The threat of domestic violence can also be a factor, with one partner feeling so intimidated that they prefer to let the court deal with difficult issues rather than try to negotiate.
Once you decide on court action there are potentially three key stages to help you reach a financial settlement.
First Directions Appointment
This will be your introduction to the process. The solicitors representing you and your spouse will summarise the issues involved and present them to the court.
The judge will study the summaries then give directions on how the case should proceed, depending on what the points of contention are.
These will vary from case to case but could involve bringing in independent experts to determine what each spouse’s assets are worth or working out the details of complex pension arrangements. It may be that the family home has to be sold, in which case, it may be necessary to have it valued.
The same applies if there’s a family business involved, or even if one spouse has shares in a business that need to be included when assessing a financial settlement.
The judge will use this first hearing to try to remove or at least reduce any unnecessary or unreasonable points of contention. They will then give directions on how they intend to conduct the next stages of the process.
Some couples never get beyond this stage. The appearance in court and hearing the directions of the judge can be enough to concentrate their minds and enable them to see where compromise and good sense may be needed to reach a settlement. If not, they move on to the next stage.
Financial Dispute Resolution Appointment
Nothing need be decided at this hearing, but it usually proceeds with the judge saying how he views the merits or otherwise of each person’s claims, submissions and arguments. This can effectively be taken as the judge advising you about how he or she would decide the case if it were to be decided there and then.
This advice can be quite forcefully given and is sometimes critical of one or even both spouses. Judges generally do not like cases where people are being unreasonable or, even worse, secretive or obstructive.
Many couples, having seen how their case is being seen by a judge, will go away and settle without taking any further court action.
However, no ruling can be imposed on you at this second stage. If you still want to proceed despite any advice given by the judge you are entitled to do so. What’s more, nothing discussed in this hearing will have any bearing on what happens at the next, which will be before a difference judge.
A different judge is appointed for the final hearing to ensure there is no prejudice and neither side is disadvantaged from what may have been said in the previous two hearings.
This is the crunch moment when both sides submit their final case. The judge will hear evidence from both spouses if necessary and any independent experts, if required. He or she will then decide what the financial settlement should be.
You will generally be bound by the judge’s decision so you should think carefully and get good legal advice before proceeding this far. It’s quite possible that you may end up with a settlement that is worse than one you could have negotiated amicably much earlier in the proceedings.
Your solicitor will be able to advise you whether it’s better to settle through negotiation or whether your case is strong enough to take it all the way through the court process.
By Julian Nelson Director and Head of Family Law