If your case is “fully contested” and cannot be settled, it may well proceed to a final hearing. At a final hearing, the court listens to the evidence of both parties and decides what the assets are and how they should be divided.
Final hearings generally take place at court over several days (some over several weeks). Both parties will give evidence and be cross-examined by barristers, while the parties’ lawyers will make legal submissions on their behalf.
At the end of the trial the judge will make a judgment and set out an order transferring assets between the parties.
Negotiations and open offers including provision for children
You and your spouse can keep negotiating until the very end of the final hearing. Quite often offers will be made “at the court door” – i.e. just before the hearing begins.
There are two types of offers, without prejudice and open. Without prejudice offers are never usually seen by the court. Open offers, on the other hand, are seen by the judge before he reaches a decision on your case. This means that the offers help define the bracket which the judge will think about when making an order on your case. In certain circumstances, if you do better than what you openly agreed to settle for then the other side might be required to pay your costs.
Normally, you will be required by the court to make an open offer a few weeks before your final hearing. This will be a detailed proposal for settling your whole case, including ongoing child maintenance. Depending on the circumstances of your case, agreeing an order in relation to child maintenance might be the only way to deal with this without involving the Child Maintenance Service.
Section 25 statement
Your section 25 statement is the most important witness statement which you will prepare during your divorce. In this statement, you set out your evidence in relation to the factors which the court will have particular regard to when making an award.
These factors, contained in section 25 of the Matrimonial Causes Act 1973, are:
(a) 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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
In family proceedings, you will generally not give your evidence in court (though you might be cross examined by the other side) so the section 25 statement is your main opportunity to put forward your side of the case at the final hearing. The judge will consider the evidence in this statement when assessing what assets are available for distribution and what portion of them you should get.
Generally, these are produced a few weeks before the trial. This will give you the opportunity to examine the evidence your spouse puts forward and build up your case against it.