Deciding on whether (and when) it is appropriate to make the application to the Court is a big step and there are a number of things which you need to think about. Many of our solicitors at Kidd Rapinet have extensive experience in this area, having dealt with these types of cases for decades. The law itself and the processes at Court are ever evolving, so here are our top considerations to think about:
Have you considered other ways of deciding how to divide your assets?
There are lots of options to consider when looking at how to come to a financial agreement. The Court actively encourages the use of Alternative Dispute Resolution before you make an application to the Court and, in fact, there are benefits for each of the different routes you could adopt. Indeed, unless you fall within certain exceptions (speed and the presence of abuse being two examples), you have to be signed out of mediation before you can make your application to the Court. Other approaches are collaborative law, arbitration or even simply negotiating through solicitors. Almost all of these forms of Alternative Dispute Resolution are quicker and more cost-effective than making the application to the Court and can be tailored to your personal circumstances.
Are you prepared for a family court process that can take 9 – 12 months or more?
Whilst it is undoubtedly true that there is a benefit to having a Court timetable in place, the timetable itself is probably going to take some 9 to 12 months, if not longer.
Can and will the Court make the Financial Orders which you are seeking in divorce?
The Court has a very wide discretion to make a number of Orders when it comes to financial matters, but its arsenal is limited. Is your desired outcome something which the Court can impose on you and the other party and is it something which the Court will order? If not, perhaps you are better off trying to come to an agreement.
How are you going to fund court proceedings?
Court proceedings can be extremely expensive and whilst it is possible to settle matters at any point, costs can be anywhere between £15,000-£100,000 or more. Are those costs justified having regard to the size of the assets and the complexity of matters? Do you need to consider other ways of funding the proceedings such as a litigation loan on application for a Legal Services Payments Order? These are options which your lawyer can discuss with you and which you will need to consider carefully before making an application to the Court.
Are you looking for interim Orders and do you need interim maintenance?
Within financial proceedings the Court can make interim orders for maintenance to assist whilst financial issues are being resolved if you are in financial difficulty. However, there is a specific process to follow, and your lawyer will be able to advise you as to whether you have a strong argument for interim maintenance and if the costs of such an application are justified. There are also certain circumstances in which freezing Orders are appropriate if you think that your estranged spouse is going to dissipate assets, or even Orders to reverse transfer of assets. Interim applications are a powerful tool, but they have to be considered carefully – poorly considered applications could leave you open to your estranged spouse seeking their costs from you if the application fails.
Do you need an application to ensure full financial disclosure during divorce proceedings?
Court proceedings will result in both parties having to provide full and frank financial disclosure. Do you need to issue that application at Court to be able to rely upon Orders of the Court to make sure that you have enough information about your estranged spouse’s finances? Can you obtain this disclosure outside of the Court process without a Judge being in a position to make Orders for disclosure? This will depend on your honest assessment of your circumstances and the attitudes of the parties involved.
There are lots of things think about before issuing financial proceedings, but we will always consider these options with you and whether, ultimately, an application to the Court is the right thing for you in your particular circumstances.
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