This can often be the most difficult part of any divorce. Although the Courts have a long list of factors they have to take into account, each case does vary, but the Courts have an obligation to make sure that any settlement is fair. Again, most cases settle without needing to go to trial, sometimes by negotiation between solicitors (after exchanging financial information with the other side) and sometimes, after issuing Court proceedings (for what is known as Ancillary Relief).

Factors the Court Must Consider

In dividing the assets the Court are obliged to consider all the following issues:-

• The income, earning capacity, property and other financial resources each of the party has or is likely to have in the foreseeable future.
• The financial needs, obligations and responsibilities each of the parties has or is likely to have in the foreseeable future.
• The standard of living enjoyed by the family before the breakdown of the marriage.
• The age of each party to the marriage and the duration of the marriage.
• Any physical or mental disability of either of the parties to the marriage.
• The contributions which each of the parties made and is likely, in the foreseeable future to make to the welfare of the family including any contribution by looking after the home or by caring for the family.
• The conduct of each of the parties if that conduct is so significant that it would be unfair for the Court to ignore it.
• The value to each of the parties of any benefit (e.g. a pension) which by ending the marriage the party will loose their chance of getting.

Application to the Court for Ancillary Relief

• The Applicant sends in a Notice to the Court indicating what claim is being made.
• The Court fixes a first appointment within six to twelve weeks.
• At least 35 days before the first appointment each party must send to the other and to the Court their Form E. Form E is a document that needs to be sworn and contains all the details of their financial position. There is a set format for it and the information is extensive.
• At least 14 days before the first appointment each party must send to the other party and to the Court documents setting out the key issues in dispute and a timetabled history of the case along with a questionnaire setting out any further information or documents they require from the other party to get a full financial picture.

The First Appointment

This is the first court hearing and it is usually estimated to last thirty minutes. The purpose is to try to sort out the issues between the parties and for the Court to see whether the questions each party ask in their questionnaire are reasonable and to move the case along generally. The Court might, for example, at this stage order that the former matrimonial home should be formally valued. Usually, the Court will then order a Financial Dispute Resolution (FDR) appointment.

Financial Dispute Resolution Appointment

The FDR is a more informal hearing and is aimed to try to get an agreement between the parties without a full hearing. The Judge may hear brief details of the case and will encourage an agreed settlement, often recommending how the assets should be split. Sometimes the Court feels that an FDR will not be appropriate and move straight to a final hearing. The Courts view is very much to encourage negotiation and settlement without the additional costs, delay and stress imposed by a full final hearing.

The Final Hearing

If a settlement cannot be negotiated then a final hearing is necessary. This is on average roughly between four and six months after the Form A was issued. The Court will review all the written evidence including Form E’s, will hear evidence from the parties and in the absence of any agreement will make a final Order. The Judge at the Final Hearing will always be a different Judge to the one who heard the FDR.

Children Issues

Parental Responsibility

Parental Responsibility means broadly the rights you would expect a parent to have with regard to a child - including the right to decide where a child lives, on medical treatment and on any change to a child’s name. Mother automatically has Parental Responsibility. Father, however, only automatically has Parental Responsibility either if he is married to the mother, or if he is granted a Parental Responsibility Order by the Court or if mother agrees to make a Parental Responsibility Agreement (which needs to be formally registered) – or if, since December 1st 2003, he was identified as the father on the child’s Birth Certificate.

Court Orders

There are a number of Orders the Court can make about children, but the principal four are:-

• Residence Order – i.e. where a child lives (previously know as ‘custody’).
• Contact Order – i.e. when and how a child sees the parent with whom s/he is not living (previously known as ‘access’).
• Specific Issue Order – this enables the Court to determine a matter of importance between the parties e.g. on a child’s medical treatment, schooling or religious upbringing.
• Prohibitive Steps Order – this allows the Court to stop a parent doing something that they might otherwise be entitled to e.g. stop a parent taking a child out of the country without permission of the Court or coming into contact with someone that the Court feel is not suitable.

In considering the above Orders the Children Act makes it clear that the welfare of the child is the paramount consideration i.e. not what is best for the parent but what is best for the child. The Children Act sets out a list of factors the Court have to consider, which are:-

• The child’s wishes and feelings.
• The child’s physical, emotional and educational needs.
• The likely effect on the child of a change in their circumstances.
• The child’s age, sex and background.
• Any harm which the child has suffered or is at risk of suffering.
• How capable are the parents and any other relevant person of meeting the child’s needs.

The Court has an obligation to make no Order about a child unless they think that making an Order is better for the child than making no Order.

As in all family matters we strongly advise parents to try to agree arrangements for the sake of the child. We will therefore assist as far as we are able in trying to reach a satisfactory agreement without the need of an application to the Court. Needless to say if an application to the Court proves necessary we will represent you with sensitivity.

If you would like further information, contact us today for advice from an expert divorce solicitor at our Salisbury, Andover and Amesbury offices.