The involvement of the courts is one of the methods used to progress divorce proceedings. It is also likely that other processes will be used, such as mediation, collaborative law, negotiations between the parties or their representatives or family arbitration. It is also worth highlighting that as well as the divorce itself, there are also ancillary matters such as the finances and children arrangements, that will be dealt with separately and may need their own court hearings.
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If a divorce is contested, then the courts will want to hear evidence from both parties to decide if the person asking for the divorce (the petitioner) is entitled to one based on the evidence given. Contested divorces are very uncommon.
It is more likely that a court hearing will be needed to deal with the division of finances or childcare arrangements if these cannot be agreed and this is what is discussed below. Unless the court has directed otherwise, both parties must attend these hearings.
It is always best if childcare arrangements can be resolved between the parties amicably. Where that is not possible then the courts will need to become involved in making specific orders about the care and upbringing of the children. The parties must have attended a mediation meeting before they apply for a court order.
Once a court order has been applied for the court will arrange a directions hearing for both parents. There will usually be a family court advisor from the Children and Family Court Advisory Support Service (Cafcass).
The court can ask Cafcass to provide a report on the case to determine what is best for the child. It is possible that the child will be asked to say what they want to happen. The parties will be given a copy of this report.
The court will consider the welfare of the child first and foremost and will only make an order that is in their best interest. The issues that they will consider include:
The court will determine at this hearing what can and cannot be agreed and if there is any risk to the child. If agreement cannot be reached at this meeting, then the court will set out a timetable on what happens next.
Where a financial settlement cannot be agreed between the parties it will also be necessary for the court to become involved.
The first hearing that is set after a financial application is received is the first directions appointment. This hearing is essentially a housekeeping exercise, during which the court orders the steps (known as ‘directions’) that are needed to establish the extent and value of assets in your case. Only directions the court considers proportionate will be ordered.
Directions which the court may (non-exhaustively) order, include:
The FDR hearing is ‘without prejudice’, meaning it cannot be referred to openly or in later hearings to encourage settlement between the couple.
In advance of the FDR, you will be expected to make a proposal to your spouse following legal advice. Once the judge has heard from both sides, an indication will be given as to what they believe will be the outcome at the final hearing.
Most cases settle at, or shortly following, the FDR. If you do not reach agreement, the judge is likely to give further directions to prepare for a final hearing.
It is possible to pay for a financial remedies specialist to conduct the FDR in private, instead of attending a court-based one. This provides couples the opportunity to expedite the court timetable, thereby avoiding delays and enabling personal selection of an appropriate date. The private judge will also have more time in these cases to familiarise themselves with the complexities of your case, as well as provide their undivided attention for the full day.
At a final hearing, the parties can be cross examined by the other side or their representative and a new judge will consider all of the evidence. At the end of the final hearing, the judge will deliver their judgement, which forms the basis of a financial order. In reaching their conclusion, the judge will consider various factors, which include:
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.