Has Anyone Seen My Judge?

We are suffering one of the biggest problems ever seen in the family finance courts: a lack of judges and judicial time to hear the cases.

Most would agree that a child who is at risk of imminent harm should be prioritised by the family court. To those litigants dealing with a matrimonial finance case however, it can become progressively more frustrating when they find that their case has been taken out repeatedly because, due to a lack of judicial time, their judges are needed elsewhere. Leaving aside any views I have on the chronic lack of funding from the government to the court system, what follows is some basic guidance on how a case can be best managed to maximise chances of settlement while the court try to find a missing judge to hear your case.

Disclosure

There is a desire in a finance case to disclose as little as possible, whether that is in general disclosure or in reply to questionnaires and requests for further information. This often leads to further arguments later. A comment I often hear passed is “why does he/ she want to know that?”. There are usually two approaches to take. One is to resist providing the information. The other (usually the most helpful for settlement) is to provide the information required. The family finance courts are a place where arguing over the moral principle of disclosure can lead to disproportionate costs. Think of disclosure like the police eliminating someone from their enquiries – answer the question and move on.

Your ex-spouse may think they know that Aunt Sally’s bracelet was sold five years ago, and the proceeds donated to the Wildlife Trust For Orphaned Voles. An argument that (and perhaps you are correct) “they know this, tell them in a letter I refuse to answer” can have the opposite effect to the one you desire. Instead of bringing that line of enquiry (to use the police investigation parallel again) to an end, it is likely to shine the spotlight on this missing piece of information. What often follows is protracted correspondence between the two sides until eventually the matter is decided by way of a court order. By this time temperatures are raised, and the likelihood of reaching settlement has moved further away.

I consider there to be a three stage process to a matrimonial finance case. The first stage is to gather up the information. The second is to consider the information. The final stage is to decide what to do with that information (ask for more information/ make an offer/ reconsider your position).

To increase the likelihood of reaching settlement, front loading is often the best way to make progress. There may be assets to value such as a property, a piece of jewellery, or a business. It is usually better to agree to have these items valued as soon as possible so that the second stage (consider the information) can be started.

Parties to a case are often keen to make an offer to settle as soon as possible. It can sometimes be a source of frustration when a lawyer suggests that it is too soon to make an offer. Usually, this is because there are outstanding points of information yet to be gathered. It is once information has been properly gathered in and then considered, that the third stage of considering what to do with that information (i.e., making an offer) can be dealt with.

Cost

Always remember that there is a cost in pursuing litigation. This is not just in financial terms, although the cost of a fully litigated financial case can be, and usually is, significant. Often, the parties to a case need to resolve the financial dispute between them so that either or both can move on with their lives. With the court system experiencing more delays than ever before there will be a cost in delay and stress. As recently as this week, I was given a date for a two day final hearing in April next year. This, after what has already been a delay of nearly 18 months.

ADR

Sometimes it is not possible to reach agreement without external input. There is an expectation on any parties to a case to consider alternative forms of dispute resolution. These may include mediation, arbitration, or simply a round table meeting (where the parties agree to sit together around the table and discuss the case in the presence of their legal teams).

In a financial case there are usually three hearings. FDA, FDR, and then a final hearing. The costs increase significantly from one hearing to the next. It is not uncommon for a judge to give an indication at the FDR hearing that whatever costs have been incurred to date will double to the end of the final hearing.

Parties to a case may wish to consider a private FDR hearing. This is where a barrister (or sometimes a retired judge) steps into the role of a judge. The private FDR “judge” will give an indication and try to assist the parties to reach settlement. This will include commenting on the strength of each party’s case and what is likely to happen if the matter does not reach agreement and proceeds to trial.

There are two main advantages to a private FDR. Firstly, the parties have control over when and where the hearing will happen. Secondly, a private FDR will almost always happen significantly sooner than a court listing.

If the parties can reach agreement, it is wise to take legal advice on the preparation of a consent order. This proposed order can then be sent to the court for approval, and hopefully bring matters to an end.

Should you or your client require any assistance with any aspect of matrimonial finance, including private FDR cases, please contact clerks@becket-chambers.co.uk