The process of divorce – working towards settlement and the true cost to individuals
Some lay individuals assume that the divorce process is expensive; some have never embarked on a divorce nor do they know anyone that has gone through a divorce. They just seem to know that it is expensive. So where does this belief come from? We generally all obtain information, opinion and reports from some form of media, colleagues, friends and families.
Generally, the divorce cases that appear in the broad sheets and tabloids have been to an appeal. This means that the matter proceeded to perhaps a settlement and/or a final hearing and then went to a further stage; namely an appeal. To conclude the appeal process, there will have been many applications and interim applications and numerous hearings. Some of the applications and hearings, would have necessitated the expertise of a QC and possibly one other barrister. These cases will inevitably incur substantial legal fees. Perhaps this is how individuals form an unqualified opinion of the expense of a divorce. The reality is that mainstream cases, whether of low, mid or high value conclude without a final hearing and many even earlier, which in turn reduces costs. The costs incurred in these reported cases are not therefore reflective of everyday cases.
I hope the above dispels what I believe is a misunderstanding of divorce fees and why in turn I believe there is negative press about ‘divorce lawyers’ in relation to fees. So how do we ensure fees are kept in check in the everyday cases?
Every step we take in a divorce must be of cost benefit and proportionate to the issues of the case. How we achieve this is as follows:
Wherever possible the grounds and particulars of the divorce are agreed, before the divorce petition is issued. This ensures that an undefended divorce progresses seamlessly through the court process, which saves the parties time and fees.
B. Financial Proceedings
If mediation and negotiations have been unsuccessful, we issue the proceedings. To many clients this may be perceived as an aggressive, litigious and expensive way to proceed. However, there is a huge cost benefit of involving a solicitor and utilising the court procedure, because it is structured and timetabled.
The procedure for financial proceedings was amended in June 2000, to enable the court to have greater control of the proceedings. The courts wanted to play an active role in the case management of such proceedings. A three stage process was introduced:
- The First Appointment
- The Financial Dispute Resolution Appointment
- The Final Hearing
The last stage is self-explanatory, therefore focussing on the first two:
The First Appointment
Prior to this appointment both parties are required to complete and exchange financial information, by completing a Financial Statement (Form E). If either party fails to complete the form adequately, or does not provide complete documentation, a list of questions is prepared and filed with the court in advance of the hearing. The parties are also required to address their mind to the issues in the case, this helps the parties focus on the salient matters and narrow the issues. The assistance, advice and guidance from a solicitor ensures correct adherence to the disclosure process and the raising of relevant questions to advance the case.
The court sets a timetable for the completion of the Form E, the statement of issues and other documents. There must be strict adherence to the timetable. In contrast, when the parties try to negotiate outside of a court imposed timetable there is little incentive for the parties to adhere to any timetable set.
The Judge undertakes a review of the questions filed by each party, the disclosure and the need if any for reports. The efficient case preparation by a solicitor and in turn a Judge’s active case management ensures that fishing expeditions are avoided and only appropriate questions are allowed.
The hearing concludes with directions on the next steps to prepare the matter for a Financial Dispute Resolution hearing. The directions include provision for both parties to make proposals for settlement in advance of the hearing.
The Financial Dispute Resolution Hearing (FDR)
This is the most significant of change made in 2000. This is a settlement hearing. The process actively encourages and promotes that parties work towards a settlement.
The most relevant sections for the purposes of this note, under Rule 2.61E of the Family Proceeding Rules (Amendment No: 2) Rules 1999 are extracted below:
(1) The FDR appointment must be treated as a meeting held for the purposes of discussion and negotiation and paragraphs (2) to (9) apply.
(3) Not later than 7 days before the FDR appointment, the applicant must file with the court details of all offers and proposals, and responses to them.
(6) Parties attending the FDR appointment must use their best endeavours to reach agreement on the matters in issue between them.
(7) The FDR appointment may be adjourned from time to time.
(8) At the conclusion of the FDR appointment, the court may make an appropriate consent order, but otherwise must give directions for the future course of the proceedings, including, where appropriate, the filing of evidence and fixing a final hearing date.
(9) Both parties must personally attend the FDR appointment unless the court orders otherwise.
The hearing is presided over by a Judge; each parties’ legal representative is given the opportunity to present their case. On the basis of the financial disclosure and any expert reports, the Judge directs what he considers would be a sensible way to resolve the dispute. Then each party with their legal representative attempts to negotiate a settlement. The matter usually concludes by way of a consent order and on the rare occasion the matter is listed for a final hearing.
The role of the family solicitor is to work towards settlement, by focusing on the salient issues, according to a timetable and taking proportionate steps, this ensures that costs incurred are fairly and appropriately applied. Most of my cases resolve prior to the settlement hearing, as I work tirelessly to achieve this. The quicker a case is resolved the less fees are incurred. This focus and aim to settle is what reduces parties costs provided they themselves are willing to accept advice and negotiate.