If you are involved in family court proceedings of any sort the chances are that at some point in the proceedings you will be required to prepare a written statement in support of your case.

Obviously, a statement is an important document. It sets out the evidence that you intend to rely on and, as such, will have a huge bearing upon the outcome of the case.

But there are right and wrong ways to prepare a statement, and it is essential that your statement is prepared the right way.

Last week the President of the Family Division published a memorandum setting out how such statements should be prepared. The memorandum was aimed at lawyers preparing statements for their clients, but much of what it contains could equally apply to the person actually making the statement.

The President began by explaining what a statement should and should not contain.

Amongst the things that a statement should not do is seek to argue the case, and set out opinions of the person making the statement. These are common errors in many statements.

The only things that a statement should contain are matters of fact, and matters of information and belief.

Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen).

However, and this is another issue with many statements, a statement may state only those matters of fact of which the person making the statement has personal knowledge, and which are relevant to the case. All too often statements contain facts of which the person does not have knowledge, and facts that are simply irrelevant

Further, the statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about the financial needs of a party, will be matters of information and belief. Accordingly, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

The other big lesson that everyone making a statement should take from the President’s memorandum is that a statement must be as concise as possible, whilst not omitting anything of significance.

It is easy to think that the longer the statement, the better it is for your case. This is not true – the judge will not want to read through a long statement, much of which is likely to be irrelevant. As a general standard, said the President, a witness statement should not exceed 15 pages in length (and very often it does not need to be nearly as long as that).

A statement is an important part of preparing a case. It therefore needs to be done properly, preferably with the help of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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‘Financial remedy’ is a term used to describe various types of family law court applications concerning money or property. The most common type of financial remedy application is made in connection with divorce proceedings, but they are made in other situations as well.

Whatever the situation, the court will require both parties to provide relevant details of their means, so that it can decide the case. This is achieved by the parties completing a financial statement, known as a ‘Form E’, and sending copies to the court and the other party.

But there are different types of Form E, depending upon the type of application. These are designated Form E, Form E1 and Form E2.

So which one should you use?

As mentioned, the most common type of financial remedy application is in connection with divorce proceedings. For this, you should use the ‘original’ Form E, which is the most comprehensive of the three forms.

This Form E is also used in financial remedy applications on civil partnership dissolution, judicial separation, annulment and applications for financial relief after an overseas divorce.

But in some financial remedy situations the court does not need to have all of the information required by the original Form E.

This is where Form E1 comes in. Form E1 is used for all other types of financial remedy application, for example an application for financial provision for a child, usually made by a parent who was not married to the other parent.

Which leaves us with Form E2. Form E2 is used on an application to vary a financial remedy order. The most common situation here is where there is a spousal maintenance order, and one spouse wishes to increase or decrease the amount of the maintenance. Form E2 is the shortest of the three forms, as the court only requires limited information to decide the application.

You can find some tips on completing a Form E in this post, although as stated there you should really seek the assistance of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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When a husband and wife cannot agree a financial settlement on divorce one of them will make a financial remedies application to the court, asking the court to decide the matter.

Obviously, the court cannot decide what would be an appropriate settlement without full details of both parties’ means. The parties are therefore required to complete a financial statement, setting out details of their income, outgoings and assets. The statement is known as a ‘Form E’.

The parties must exchange copies of the Form E and file it with the court on a date set by the court, which will be not less than 35 days before the First Directions Appointment.

The Form E can be quite a daunting document, so here are six tips to help you complete it.

1. Read through the whole form before you begin completing it, paying particular attention to the notes on the form, especially the warning on the front page that you have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances.

2. Once you have been through the form you will know what information you will need to complete it. Gather together all of the required information before completing the form. Adding information later may require amending the form in more than one place.

3. Similarly, the form requires you to produce various documents, as set out in the schedule at the end of form. Gather those documents together before completing the form (you may need to request certain documents, such as pension valuations). If you are not able to obtain any documents in time for filing the form with the court, tick the ‘To follow’ box on the schedule.

4. When completing the form don’t be tempted to miss items out, or to undervalue items – doing so could lead to you incurring further costs down the line, and could even lead to any final order that the court makes being set aside.

5. Perhaps the most important part of the form is section 5, in which you tell the court what order you are seeking, if you are able to do so (you may not be able to do so, as you may not be sufficiently aware of other party’s means). Whatever you say here will obviously have a bearing upon any final order that the court may make, so you should really seek advice before completing this section. Which leads us to…

6. Lastly, take legal advice! Form E is perhaps the most important document in a financial remedies application. It may, in theory at least, be designed for completion by a layperson, but it really needs the input of an expert lawyer, in all but the simplest of cases. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week we began looking at the procedure that the court follows on an application for a financial remedies order. Specifically, we looked at the First Directions Appointment, or ‘FDA’.

We now turn to the next stage in the procedure: the Financial Dispute Resolution appointment, or ‘FDR’, at which both parties (and their lawyers, if they are legally represented) must attend.

The basic idea of the FDR is to see if the case (or even just part of it) can be settled by agreement without having to be decided by the court, thereby saving time and costs.

The FDR is before a district judge, but they will not decide the case, or force a party to agree to a settlement – their task is to try to help the parties reach an agreement.

One way the judge may try to encourage settlement is by giving an indication of how the court is likely to decide the case if no agreement is reached. Making the parties aware of which way the case is likely to go should prompt reasonable negotiation.

The parties themselves have an obligation to “use their best endeavours to reach agreement on matters in issue between them.” They will do this by putting forward, and responding to, settlement offers.

Note that any settlement offer made at an FDR cannot subsequently be relied upon by the other party, unless they are re-stated in open correspondence after the FDR.

If a full agreement can be reached at the FDR (and most cases are agreed at or before the FDR) then the district judge will ask the parties to draw up a consent court order, setting out the terms of the agreement, for approval.

If no full agreement can be reached at the FDR then the district judge will give directions as to how the case should continue, for example by fixing a date for a final hearing, at which the court will hear all the evidence, and make a final decision on the case.

It should be noted that if the case does proceed beyond the FDR the district judge who conducted the FDR will take no further part in proceedings. This avoids any suggestion later in the proceedings that he or she has ‘pre-judged’ the case, and enables the parties to make proposals freely at the FDR, knowing that the judge who decides the case will not have heard them.

The FDR is a crucial step in the process of a financial remedies application, at which the outcome of the case can be decided. It is therefore essential that anyone required to attend an FDR first seeks expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Unless a divorce settlement is quickly agreed between the parties then one of them is likely to apply to the court for a ‘financial remedies’ order, whereby the court will decide upon the settlement.

Financial remedies applications follow a procedure set down by the rules, and it is important to understand how the procedure works. What follows assumes that the parties are not able to reach an agreement along the way – if they do, then obviously the case comes to an end.

The first thing to understand is that the procedure does not involve just one court hearing, at which the court will make its final decision. In fact, there may be several hearings before the final one, depending upon the complexity of the case.

The first hearing, which will be fixed by the court when it receives the financial remedies application, is the ‘First Directions Appointment’, or ‘FDA’ for short. Both parties will have to attend the FDA.

Before we explain what an FDA is, we need to look at what must be done between the issuing of the application and the FDA.

Perhaps the most important thing that each party must do is prepare a detailed statement of their finances (known as a ‘Form E’), and send copies of the statement to the court and the other party. The point is that no settlement can be ordered or agreed unless the financial circumstances of both parties are fully disclosed.

Of course, you don’t have to accept the contents of the other party’s Form E at face value. They may, for example, have omitted certain assets. Accordingly, the rules allow each party to prepare a questionnaire for the other party to answer, requesting further information relating to the other party’s finances.

So we come to the FDA.

The rules state that the FDA “must be conducted with the objective of defining the issues and saving costs.” In other words, the court will want to know what matters are in dispute between the parties, and therefore have to be decided by the court – reducing the job of the court in this way will hopefully shorten the case, and therefore reduce the costs of the parties.

To this end, the court will give directions as to what should happen next in the case. Exactly what directions it gives will vary from one case to another, but the following directions are made in most cases:

1. A direction setting out which questions in the questionnaires must be answered.

2. Directions regarding the valuation of assets, for example that the parties should agree who should value the former matrimonial home.

3. Directions as to what evidence each party may produce (you can’t simply produce any evidence without the court’s permission).

4. In a case where a pension order is requested, a direction that the party with the pension provide details of the pension.

5. Lastly, directions as to what should happen next in the proceedings. For example, unless the court considers it will not be appropriate, it will usually fix a ‘Financial Dispute Resolution’ (‘FDR’) appointment, at which the parties will be expected to try to negotiate a settlement, with the help of the judge. If an FDR is not appropriate then the court may fix a date for a final hearing.

The FDA is an important step in the process of a financial remedies application, and it is thus essential that anyone required to attend one first seeks expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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When the court decides what financial settlement is appropriate on divorce it will take into account a number of factors, including not just the financial assets of the parties, but also their debts.

This means that if a party has significant debts then they may be granted a larger settlement, so that they have the means to pay the debts.

But what if, as is often the case, the debts, or at least a large part of them, comprise the legal costs incurred by the party in the financial remedy proceedings? Are these still taken into account by the court?

Before looking at the answer we must consider the rule as to payment of legal costs in financial remedy proceedings.

The rule is essentially quite simple: each party must normally pay their own legal costs. The court can order one party to pay the other’s costs, but only where this is justified by that party’s conduct in the proceedings, for example failing to comply with court rules, or failing to negotiate reasonably.

Now, the reader may have spotted a problem with taking a party’s legal costs into account when deciding how much that party should receive in the financial settlement. Surely, if that party receives a larger settlement, doesn’t this effectively mean that the other party is paying their legal costs, contrary to the costs rule?

Not necessarily so, as a recent family court appeal case demonstrated.

When deciding a financial remedies case on divorce the court must take into account the financial needs of the parties, and this includes their need to pay debts, which may include their legal costs.

In the case the judge accepted that giving a party a larger lump sum to cover their legal costs has the effect of relieving that party of their obligation to pay their lawyers, in the same way as a costs order would. However, the purpose of the larger award is quite different to a costs order: to ensure a fair settlement, rather than to ‘punish’ the other party for their misconduct.

Here, the failure of the court to include the wife’s legal costs in the lump sum awarded to her meant that she would have to pay those costs out of the sum the court allowed her in respect of her housing needs, thereby not leaving her with enough to obtain suitable rehousing. The wife appealed against this decision, and the appeal court allowed the appeal.

This case makes it clear that legal costs can be taken into account as a debt for the purpose of a divorce settlement.

It should be mentioned, however, that the appeal judge pointed out that each case is fact-specific. Costs will not always result in a larger settlement – it depends upon the circumstances of the case, including the available assets and the needs of the parties.

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It has recently been reported in the national media that there was a dramatic drop in the number of pension sharing orders made by the courts last year: 10,500, down from 15,000 in 2019, and the lowest number in ten years.

There may be a number of reasons why the figure was so low last year.

Some of these reasons may be of no great concern, such as the temporary effect of the pandemic reducing the number of cases dealt with by the courts, more wives having their own pensions and not needing a share of their spouse’s pension, and increased house prices resulting in more people taking a greater share of the matrimonial home, rather than of their spouse’s pension (although there have also been significant recent increases in the values of pensions).

But there could be a more worrying reason: that more people are doing their own divorce without a lawyer to advise them upon their entitlement to a share of their spouse’s pension, thereby missing out upon an extremely valuable and important asset.

Just to recap for the benefit of those who don’t know, a pension sharing order is an order transferring all or part of one spouse’s pension into a pension belonging to the other spouse. A common arrangement is for pensions to be ‘equalised’ between the spouses, so that each spouse ends up with a similar pension entitlement.

The importance of pension sharing on divorce comes into focus when one realises that pensions are often the second most valuable asset on divorce, with only the former matrimonial home being worth more. And it is still often the case that one spouse, usually the husband, has far greater pension provision than the other, leaving the other spouse at risk of having to manage with far less income in retirement.

It is therefore essential that anyone going through divorce is advised as to their entitlement regarding pensions. Obviously, such advice comes at a cost, but that cost could easily be outweighed by the value of a pension share.

We can find you an expert family lawyer to provide you with the advice you need, working with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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When money is tight, a divorce settlement will usually be decided by reference to the financial needs of the parties. But sometimes a party’s legal costs can leave them without enough money to cover their needs.

In such circumstances the court will do what it can to ensure that needs are met, as a recent case demonstrates.

Housing needs

The case concerned what was described as “a straightforward financial remedy case”. Unfortunately, it also involved a high degree of animosity between the parties, as a result of which they ran up disproportionately high legal costs.

The wife owned all of the assets, including the former matrimonial home. The central issue in the case was that the husband would have to rehouse himself.

The judge determined that the husband should purchase a home for himself, and that he needed £400,000 for this, plus £25,000 to cover the costs of purchase, and the purchase of a small car.

However, the husband had debts of £257,000, including legal costs of £186,000. Clearly, the husband could not pay all of his debts out of the sum of £425,000, whilst still rehousing himself. Accordingly, the judge awarded him an extra £200,000 towards payment of his debts, making the total award £625,000.

The wife appealed against the debts part of the award, which she said was tantamount to ordering her to pay the husband’s legal costs. The appeal was ultimately dismissed, as the Court of Appeal held that the award was an order that the judge was entitled to make.

In short, if the court did not provide for the husband’s debts, then his needs would not be met.

Conduct not relevant

There is another aspect of the case that merits comment.

In earlier proceedings between the parties over arrangements for their child the court found that the husband had been violent towards the wife on two occasions, and at one stage in the financial proceedings the judge had suggested that it would be wrong to allow the husband his costs where such a finding had been made.

However, the Court of Appeal said that such violence could only be taken into account with regard to the financial settlement if it amounted to conduct that was so serious that it could not be disregarded.

Clearly, the husband’s conduct was not that serious. Indeed, as the Court of Appeal said, conduct is only rarely relevant to the issue of a financial settlement on divorce.

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The long-running divorce between Russian oligarch Farkhad Akhmedov and his former wife Tatiana Akhmedova has settled at last.

In 2016 the High Court ordered that Ms Akhmedova should receive the sum of £453 million, believed to be the biggest divorce award in this country. Since then, Ms Akhmedova has been attempting to enforce the award.

The latest round of this battle took place in the High Court in London recently, when Mrs Justice Knowles found that Mr Akhmedov had transferred money to various trusts, a company and the parties’ son Temur, with the intention of putting his assets beyond the reach of Ms Akhmedova. Accordingly, she ordered the trusts and company to make payment to Ms Akhmedova, and Temur was ordered to pay her some £75 million.

In the course of her judgment Mrs Justice Knowles described the Akhmedov family as “one of the unhappiest ever to have appeared in my courtroom.”

It has now been reported that the case has settled, with Ms Akhmedova agreeing to receive the sum of £150 million. Representatives for Mr Akhmedov said that he had agreed to pay her £100 million in cash and about £50 million in artworks. (The family assets include a modern art collection, which includes pieces by Andy Warhol, Mark Rothko and Damien Hirst, and which has been valued at £112 million.)

A spokesman for Mr Akhmedov claimed that Ms Akhmedova had ended up with “not a penny more” than she had been offered by Mr Akmedov six years ago.

It has also been reported that Ms Akhmedova has spent some £75 million on litigation funding and legal fees.

As far as we are aware Ms Akhmedova has not commented, either upon the settlement or the issue of her costs.

All of the above suggests, however, that Mr Akmedov may have got his way (although the settlement will still have to be approved by the court), and that Ms Akhmedova has lost out considerably, as a result of Mr Akhmedov’s failure to comply with the 2016 order.

That would certainly an unhappy message to take from this case, on top of the comments made by Mrs Justice Knowles.

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It may be thought that the idea of being imprisoned for failure to pay a debt belongs in the dark past of our legal history.

But anyone who believes that a debtor cannot now be sent to prison would be quite wrong.

Someone who is owed money under a court order, including a financial order made on divorce, can apply to the court for the debtor to be committed to prison for a term not exceeding six weeks, or until payment of the sum due. This procedure is known as a ‘judgment summons’.

And a recently published case is an example of this occurring in practice.

The case concerned a lump sum order made in February 2020. Under the order the husband was to pay to the wife the sum of £5,878,732. That sum was to be paid by instalments, the first instalment of £50,000 to be paid the day after the order was made, a further instalment of £647,732 to be paid by the 2nd of March 2020, and the remaining sum of £5,181,000 to be paid by the 2nd of March 2022.

The husband did not pay the first two instalments, and the wife applied for a judgment summons.

Before committing the husband to prison the court had to be satisfied that the husband had the means to pay the instalments, and refused or neglected to pay them.

The judge was not satisfied that the husband had the means to pay the second instalment, but was satisfied he had the means to pay the first instalment, and had refused or neglected to pay it. Accordingly, he sentenced the husband to the maximum prison term of six weeks.

However, the judge said that he did not want the husband to go to prison – he wanted the wife to be paid the money she was due. He therefore gave the husband 14 days to pay the sum of £50,000. If he did not pay that sum in full by then, he would go to prison for six weeks.

If you are owed money under a financial remedies order made on divorce then you should take legal advice as to how you may enforce payment. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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A recent Family Court case says at least two important things about sorting out finances on divorce. It also says a number of other things, but we will concentrate on two here: the perennial issue of depleting the available assets by running up excessive costs, and the age-old settlement method of ‘splitting the difference’.

The two things are, of course, closely connected: the best way to keep your legal costs to a minimum is to resolve the matter by agreement, and this may obviously entail each party settling for less than they were originally seeking.

The case concerned the division of assets of some £2.6 million, most of which had been inherited by the husband. Very sadly, in 2018 the wife had been diagnosed with Young Onset Alzheimer’s, which will have a significant effect on her life expectancy and medical needs during her remaining years.

We are told that at the start of the case the wife was seeking £1.2 million of the assets, and the husband proposed that she should receive £750,000, a difference of £450,000.

We are also told that the combined legal costs of the parties came to about £483,000, slightly more than the difference the difference between the two proposals. As the judge said:

“This is not a “big money” case by any stretch; the costs represent about 18% of the wealth, which is clearly disproportionate. To that should be aggregated the emotional toll which usually accompanies litigation of this nature.”

This is such an important message. So often parties to financial disputes drain the very assets they are arguing over, by running up excessive legal costs.

And in the end the judge ordered that the wife should have £953,000, which represented some 37 per cent of the assets. We will not go into the details of how he calculated this sum, but it is notable that, as in so many cases, the award ‘splits the difference’ between the parties’ proposals.

The lesson is clear: very often the answer to how a case should be settled lies quite simply between how much each party is proposing. This can surely not be unexpected, given that each party should set out openly what their proposals are. The court therefore knows the proposals before deciding the case, effectively setting an ‘upper limit’ upon what each party should receive.

Of course, this is not to say that the court will always ‘split the difference’. Sometimes, it may decide that it is fair to award a party all that they are seeking.

The ultimate lesson is to take expert legal advice, and to pitch any proposal accordingly.

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Divorce of course arises from past events that led to the breakdown of the marriage. But that does not mean that the divorce itself must be all about what has happened in the past.  

All too often divorcing couples become mired in arguments about the past, but all that achieves is more animosity, more delay and more legal costs.

Of course, it can be difficult to put the past behind you, especially when those events had such a significant effect upon your life. The temptation to raise past events in divorce proceedings can be overwhelming.

And it doesn’t help when one sees divorcing celebrities dragging up the lurid history of their marriage in the popular media every day. The idea that this is ‘normal’ behaviour by divorcing couples is a trap that is all too easy to fall into.

And many people going through divorce think that the past behaviour of their spouse will be of crucial interest to the court in determining what orders it should make.

But, save where there has been domestic abuse, the court is largely not concerned with past behaviour. The real concern of the court is what should happen in the future.

Let us look at the three main things involved in divorce proceedings: dissolving the marriage, sorting out arrangements for children, and sorting out finances.

It is true that at present if a person wants to get divorced before they have been separated for two years they will need to prove that their spouse has committed adultery or behaved unreasonably. But the court isn’t really concerned about these things, only that the marriage has irretrievably broken down. And findings of adultery or unreasonable behaviour will usually have no bearing whatsoever upon other matters, such as children and finances.

And when no-fault divorce comes into force, now expected to be next year, then it will not be necessary at all to show why the marriage broke down.

Arrangements for children are all about the future: deciding how best the children should spend the rest of their childhood. Of course, past events may be relevant to that decision, but in the vast majority of cases they do not change the simple position that children should continue to have as full a relationship as possible with both parents.

Lastly, sorting out finances on divorce is in most cases driven by the future financial needs of each party, not about what has happened in the past. In particular, bad past behaviour by one party will be of no relevance to the financial settlement, save in the most extreme of cases.

You can’t change the past, but you can change the future. Divorce is not about what has gone before, but about making a new start, and ensuring you have the best arrangements in place for that future, for yourself, and especially for your children.

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