Please note that if you are not formally married/in a registered civil partnership then you are what is commonly referred to as a cohabitee and different law will apply to what is stated below. There is no legal status as a ‘common law husband/wife’. You will need to look into a claim under the Trust of Lands and Appointment of Trustees Act 1996 (cohabitation dispute) and/or a claim under Schedule 1 of the Children Act (financial provision for children).
One partner must issue a divorce petition or an application to dissolve your civil partnership before the court can consider finances.
These claims can take a long time to sort out so you may have to go to the court to get some regular payments for yourself and to ensure such as rent/mortgage is paid. Such an application is commonly referred to as MAINTENANCE PENDING SUIT.
Before starting a claim you may have to attend a “MIAM” – a Mediation Information and Assessment Meeting, which is to assess whether mediation is more appropriate. Some people can be exempt from this process. If mediation is deemed unsuitable, then the application can be issued.
You start your claim by completing a FORM A and ISSUING it at court. You may have to pay a court fee. The court will then send both of you a NOTICE of FIRST APPOINTMENT. This notice will include some key dates and actions that both participants have to follow. These documents are then SERVED on (sent to) the other participant. Financial relief can be a two way process – each participant may consider that they should have a share of the assets or income owned by the other.
Before the first hearing you will both be required to complete FORM E and to send it to one another and the court. This is essentially a long financial statement of your job(s), earnings, savings, debts, expenditure, pensions and property and can be found here. You will have to obtain various documents such as up to date valuations and bank statements to complete this form and you must attach copies of the documents to it.
Once the Form E has been sent and received, either participant may have questions that they wish to ask to clarify what is in it (or what is not in it). If so, before the first hearing you should prepare a QUESTIONNAIRE raising specific questions for the other person to answer.
The first court hearing is known as the FIRST DIRECTIONS APPOINTMENT or ‘FDA’. The judge will expect Form E’s to have been exchanged, together with statements of issues, chronology, statement of costs to date and questionnaires well before you come to court. The notice of hearing will set out the deadlines for this which you should stick to.
If all the disclosure is complete, and matters are relatively straightforward, this FDA can also be used as a FINANCIAL DISPUTE RESOLUTION or ‘FDR’ hearing (see below) to save time and costs. If matters are more protracted with disputes over various things then the judge will make DIRECTIONS for the participants to comply with so that next time the FDR can proceed. These orders could include the completion and exchange of replies to questionnaires by certain dates, valuations of property, pension plans, shares etc, medical reports (if e.g. one participant cannot work or needs specialist housing) and any other matters. If required a date will be set for an FDR.
The FDR is an opportunity for the participants to agree matters – the majority of cases are resolved by agreement at or before an FDR. At the FDR the judge will be far more involved and will express provisional views on how they see contentious matters being decided at later hearings. This should alert participants to their true situation and hopefully prompt negotiation. At the FDR it is the participants who reach the decision(s) not the judge. To allow the judge to speak freely, if the matter can’t be resolved the judge dealing with the FDR will play no further part in the case.
If matters cannot be resolved a date will be set for a FINAL HEARING which is effectively a trial where the judge listens to the evidence and then makes a decision. As this is a full hearing detailed BUNDLES have to be prepared, exchanged and filed at court. Remember it is the judge that reaches the decision(s) at a Final Hearing and what s/he decides may be different to what the participantsinitially wanted for themselves. Orders can be made to sell or transfer property. A sale may not be allowed for several years (e.g. until children grow up). Other orders could include the sharing of pensions, the payment of a lump sum and/or monthly maintenance.
You can see from this flowchart that this process can take several months even where matters are not that contentious. It involves basic human needs – somewhere to live, money for food and clothing, quality of life – at a time when people often want to simply move on in their lives. It can therefore become very fraught and emotional. You must be prepared for this and quite possibly a continuing financial relationship between the participants for several more years where e.g. a house sale is delayed and/or maintenance payable.