Private Financial Remedy Court Hearings…..the way ahead?

Anyone involved in financial remedy proceedings arising from their divorce will be experiencing the vast delays that unfortunately have been exacerbated by the Covid19 pandemic.

One of the key stages of matrimonial finance (financial remedy) proceedings are the three hearings that take place, namely the FDA (first directions appointment), the FDR (financial dispute resolution) and the final hearing. Most separating parties do not feel truly free of the other until their divorce is finalised and this is usually never before the parties’ finances have been resolved.

The first directions appointment is often referred to as the “first appointment” and is the first hearing that takes place during the financial court proceedings.

It is effectively a hearing at which the Judge sets out the next steps that are to be undertaken, setting a timetable of deadlines for each step to be met. These may include answering questions raised by the other party, providing valuations of properties or assets, obtaining specialist reports such as valuations of pension plans, or expected liabilities for taxation such as Capital Gains Tax (“CGT”) and ultimately setting down the hearing for the next appointment, the FDR. The FDR hearing therefore aims to put the parties in a position where they can confidently, and in a fully informed manner negotiate at the second hearing, as by this point all of the key issues such as the extent of the parties’ assets and their liabilities will be known to both parties and their legal representatives.

Unfortunately, as set out above there can be a substantial delay waiting for the Court to list these hearings and as such many parties are now turning to “private FDR hearings” to deal with these important issues. Not only is there a delay in waiting for these hearings, when the hearings are finally listed, Judges are limited in the amount of time they are able to set aside to prepare, hear and consider the issues in dispute. As such, a private FDR is an answer to these problems that are now materialising.

In effect a private FDR would take place at an agreed location. In advance of that date, the parties will have agreed to instruct a “Judge” who is likely to be a Barrister who is experienced at conducting private financial dispute resolution hearings. In advance of that hearing the “Judge” will have considered the papers fully. Both parties would then attend and be represented by their legal team and would make representations to the Judge.

Following representations being made by the parties legal teams, the Judge will give their neutral evaluation, setting out what they believe would be the order of the Court at a final hearing, often in a written format (which does not always happen in formal court proceedings) and will thereafter invite the parties to reconsider their position and see whether an agreement can be reached. The Judge’s indication is not binding and the parties can choose to proceed through the Courts to a final hearing in much the same way they could in formal FDR proceedings if they don’t like the provisional settlement being proposed.

Most of these private hearings last an entire day and therefore all of the parties have ample time to read, prepare and consider the papers. They often take place in far more comfortable surroundings than County or High Court Courtrooms, with conference facilities and refreshments available. As such they are generally far less stressful than proceedings before a formal Court.

It is generally believed that some 80% to 90% of cases are settled at a private FDR hearing meaning that they are a highly successful, cost effective and useful tool in settling financial matters in a swift and amicable manner.

We at BTMK have experiences of dealing with the private FDR process, and if you would like to discuss any of the above matters please do not hesitate to contact Lee Wilcockson on 01702 238552 or Jaime-Lee Johns on 01702 238573 or Lorraine Davis at BTMK Alan Simpson on 01268 747406.

We are committed to making the divorce and separation process less stressful and wherever possible to keep the interests of younger member of the family properly preserved for the future.

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