Financial Remedy Proceedings : Divorce Costs
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What are Financial Remedy Proceedings?
Financial Remedy Proceedings are a process by which you can obtain a Financial Remedy Order. This type of Order can be useful for settling financial matters for divorcing couples who have attempted mediation, but it has been unsuccessful.
What do Financial Remedy Proceedings Relate to?
Parties can commence financial claims against their spouse for a variety of issues. The claim could relate to:
· Maintenance payments
· Adjustments of property ownerships
· Pension sharing orders
· Lump sum payments
Claim Process for Financial Remedy Proceedings
The first step is to seek legal advice. A solicitor can provide assistance and can prepare a Form A, the document which will commence the Court proceedings.
Financial information will have to be sought as full financial disclosure is required from both parties in the marriage/civil partnership. This disclosure is called a Form E.
Next, any relevant questionnaires will be completed. A financial dispute resolution hearing will then take place. This hearing bears resemblance to mediation; however, it is enforced by the Court. Many matters will have settled by this point; though, if a claim has not, a final hearing will take place.
These actions will accrue legal costs, so it is important to act in proportion to your claim. The costs of the matter can be dealt with upon conclusion of the claim, though it is important to note that prior to any hearing (and in accordance with the Family Procedure Rules) a Form H should be filed detailing the costs incurred to date, and those that will be incurred up to a final hearing. We would recommend the input of a costs expert at this juncture to ensure the figures you record are accurate and correct.
Considerations of the Court in Financial Remedy Proceedings
The Court will conduct a broad assessment of the case when deciding on Financial Remedy Proceedings. They look at how the result of the claim may affect the welfare of the family and any children under the age of 18 who may be involved. Furthermore, they will utilize Section 25 of the Matrimonial Causes Act 1973 when making their decision.
They will also consider:
· The standard of living experienced by the couple prior to the ending of the marriage/civil partnership
· The income and financial resources of each spouse
· Any financial needs/obligations for each spouse in the foreseeable future
· Any contributions that each spouse has made to the family, including contributions to the home, or caring of the family
· The ages of the spouses
This is a non-exhaustive list, and the court may take many other factors into consideration.
What are the Benefits of Financial Remedy Proceedings?
Divorce proceedings can often be quite difficult for the parties involved and financial disputes can often be a key issue. So, the implementation of a Financial Remedy Order allows a clean break to occur between the parties.
Legal Costs in Financial Remedy Proceedings
Prior to 2006, parties were able to make Calderbank offers. These offers allowed settlements of costs prior to the final hearing, and would not have been seen by the Judge. This was quite problematic however, as it allowed parties to know that a Judge had not seen their bottom line offer. Also, it allowed parties to seek a Costs Order from the opposing party if their original, rejected, Calderbank offer was exceeded by them in Court.
Thus, this regime was removed, and the general rule is now that no orders to costs are made. Simply, this means that parties are liable for their own costs.
Information in Part 28 of the procedure rules relating to family law states that there are exceptions to this rule.
Subsection 6 of Part 28 states that “the court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings.”
So, despite the removal of Calderbank offers, the Court now has discretion to make orders for costs in certain situations. Parties should be careful and conduct themselves well during proceedings. They should also ensure that they act proportionally to the matter. Otherwise, they may find themselves faced with an Order for Costs.
Acts of unreasonable conduct are not contained within an exhaustive list, but may include provision of false information/evidence, withholding of financial information/asset disclosure, or failure to abide by Court Orders.
How can ARC Costs Assist?
We regularly assist Solicitors, Legal Executives and other legal professionals in a wide array of costs matters and disputes, and as independent experts we can assist either Receiving or Paying parties.
If you are currently involved in Financial Remedy Proceedings, one of our experts will be able to provide expert legal advice on costs law. Our team also specialise in the production of costing instruments, such as Form H and Bills of Costs.
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