To many, the notion of a divorce entails an element of financial settlement. However, the process of getting divorced and of achieving a financial settlement are strictly seen as distinct (but interconnected) legal processes. Once a divorce petition has been filed at court, it is open for either party to the marriage to apply to the court for ancillary relief, so called because this financial application is ‘ancillary’ to the divorce itself, which is often described as the ‘main suit’. Ancillary relief is now better known as financial remedy and an application for ancillary relief initiates what is known as financial remedy proceedings.
Applying to the court for financial remedy is an important part in reaching a financial settlement as it allows the agreement you and your former partner reach to be approved and sealed by a judge in a court order. Having a court order means that the agreement you have made has legal force and is binding, providing security and the option of recourse to the court should the agreement be transgressed in some way. A court order is especially important in light of the fact that should a court order not be obtained, there is little to prevent an application for financial remedy being made much later down the line and so not following the correct steps in obtaining a court order can have serious ramifications on your financial security now and in the future, even more so if you had hoped to achieve a ‘clean break’.
Making an application to the court does not mean that you must undertake an often costly and lengthy court process to achieve your financial settlement. It is possible for spouses to agree the terms of a financial settlement outside of the court process and then only when submitting the agreement in the form of a consent order is the application for financial remedy made, thereby allowing the court to review and approve the order.
If, however, either party to the marriage decides that agreeing terms outside of the court process is not possible, then an application can be made to the court to initiate financial remedy proceedings. This imposes a court timetable of hearings and disclosure on the parties in an attempt to guide the them first towards settlement and, failing that, a Final Hearing where a final decision is made by the judge. The advantage of involving the court means that in the event of one party’s lack of engagement with the process or non-disclosure, the other party has the ability to ask the court to compel them to perform certain tasks, such as provide full and proper disclosure.
In order to make an application for financial remedy, the applicant (this can be either the petitioner or respondent in the divorce) must fill out and file with the court a ‘Form A’ or ‘Notice of intention to proceed with a financial application…’. These can either be completed online, typically through your solicitors, or on paper and emailed/sent to the court.1
The Form A requires the applicant to list the various orders they may be seeking from the court. This includes but is not limited to lump sum orders, periodical payments, pension sharing orders, and property adjustment orders. Of course, this does not mean that you are guaranteed to achieve any one or all of these orders but it gives the court an indication of what settlement in your case might look like.
It should be noted that whilst you may not necessarily be seeking out certain orders, such as a pension sharing order, the application should be completed with a view to all options being on the table. This is especially important in light of the fact that it is often the case that full disclosure will not have been exchanged upon filing of the Form A so you may not yet have the proper information to rule out any particular orders at this stage.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.