ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
If the applicant is granted permission to make the application, then the orders available to the court are the same as if the divorce had taken place in England and Wales, though that does not mean that the court will consider it to be a clean sheet application such that it would make the same provision that it would
uation in which a judge is appointed to consider a summary version of the parties’ respective cases. The judge, whom parties will often appoint privately, offers an indication of the likely outcome. The onus is then on the parties to see if a settlement can be reached voluntarily, assisted by that indication. If the parties cannot reach settlement at this stage, then they will be directed to prepare the matter for a final hearing at which both parties will give evidence, and a judge will make a binding decision. The private equivalent to this process is arbitration. Parties remain able throughout the process, and indeed are encouraged, to settle matters without attending a final hearing (or indeed any hearing at all). 2.3 Division of Assets Division of Assets Financial outcomes in England and Wales are notori ‑ ously discretionary. The law provides that the outcome should be “fair”, guided by the factors set out in Sec ‑ tion 25 of the Matrimonial Causes Act 1973. These are subject to the welfare of any children of the family and include: the assets and earning capacity available to the parties, their needs, and the standard of living enjoyed during the marriage. Around that single anchor point, considerable case law has developed. Broadly speaking the court will first quantify the assets available to the parties, divid ‑ ed between those assets which are fruits of the part ‑ nership and those which are not. In the first instance, the court will consider whether both parties’ reasonable needs (including their needs in retirement) are met by an equal division only of the marital element of the assets. If that is not achieved, then the court will consider a departure from that position – either allocating a greater portion of mari ‑ tal assets to one party, or indeed “invading” assets which are not matrimonial in nature. The most com ‑ mon example would be to provide more “cash” to a party who has taken a step back from their career and diminished their mortgage capacity, to allow them to purchase suitable housing for them and any children. Children should not feel like one parent is the poor
have done under typical circumstances. 2.2 Service and Process in Financial Proceedings Service of Financial Proceedings
The process for service of financial proceedings is similar to, but distinct from, the process for service of a divorce application. As in divorce proceedings, typically the court will effect service on a respondent by way of email. In circumstances where the applicant wishes to carry out manual service, the method will vary depending on the jurisdiction in which the respondent resides. This is relevant where it is anticipated that the respondent will refuse to engage in proceedings, or where the timing of service is critically important. Timeline of Proceedings There are three main stages of proceedings, colloqui ‑ ally known as: • the homework hearing; • the settlement hearing; and • the final hearing. Before the homework hearing, known as the “first appointment”, the court will order the parties to com ‑ plete comprehensive financial disclosure and to raise any questions that they have in respect of the other’s financial circumstances. There may be other issues such as whether there should be an expert appointed to value a party’s assets. Any contested issues will be considered by the court at the hearing, the primary function of which is to prepare parties for the next stage of the process. Parties are often able to avoid the first hearing by agreeing in advance what their “homework” should be and proposing a set of direc ‑ tions to the court by consent. The next stage is known as a “financial dispute reso ‑ lution” appointment. It is a form of early neutral eval ‑
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