Financial Remedy Orders Explained
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Lisa Pepper
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It is common for disagreements to arise over the finances during a divorce, even if you are on good terms with your partner. If you are finding it hard to reach an agreement, you may need to resolve matters through a Financial Remedy Order.
What is a Financial Remedy Order?
A Financial Remedy Order is where the Court decides the best way to divide finances, property and other assets after a separation. This includes any money held in bank accounts, investments and pension funds, business assets and arrangements for the family home.
- Related reading: Selling a House in Divorce
Why might I need a Financial Remedy Order?
Financial Remedy Orders can be used when the parties cannot agree on a financial settlement between themselves. The judge must ensure the outcome is fair to both of you, so having the Court decide matters is a good way to maintain a healthy relationship between you while protecting your financial future.
How do I get a financial remedy order?
Obtaining a financial remedy order generally involves the following steps:
1: Mediation Information and Assessment Meeting (MIAM)
This is the first step in the process. You will need to attend a MIAM to understand if mediation can help you reach an amicable agreement, before you can apply for a court order.
2: Application to the court
If mediation is not successful or suitable, you can apply to the Court for a Financial Remedy Order. Your solicitor will submit the relevant application on your behalf.
3: Prepare a financial statement
Both parties are required to provide a detailed account of their financial circumstances using Form E. This detailed form includes information about your income, property, pensions and other assets.
4: First Appointment
The First Appointment is an initial court hearing where the judge reviews the financial disclosures and sets a timetable for the next stages. For example, the judge may decide that further reports or disclosures are needed. It cannot be arranged until 12 weeks have passed since the date of the application, giving you both time to make and review the financial disclosures.
5: Financial Dispute Resolution (FDR) Appointment
An FDR is an opportunity for you and your ex to discuss the issues that are unresolved between you and come up with a ‘deal.’ A judge will work with you to guide you towards a sensible outcome, having regard to the decisions a Court might make if the matter were to proceed to a Final Hearing. While every case is different, the FDR judge will encourage you to focus on the major issues such as:
- Whether a clean break is appropriate
- Whether spousal maintenance should be paid
- Where the children will live
- Whether the family home should be sold
- Whether there should be a pension sharing order
An FDR is more informal and less adversarial than a court hearing, making it more likely a settlement will be reached.
6: Final Hearing
If you are unable to reach an agreement via FDR, their case will proceed to a Final Hearing where a Court will make a decision on the financial issues. This is the last stage of proceedings and you may be required to give evidence under oath or be cross-examined by the other party’s lawyer.
The Final Hearing is legally binding. At the end of it, a judge will sign the Financial Remedy Order detailing how the finances and assets are to be divided.
What does the court take into account when it makes a decision about a financial order?
- The current income, the ability to earn in the future, any property and other financial resources of each party. The court uses this information to assess whether each party can continue to maintain a reasonable standard of living following the divorce.
- The financial needs and obligations of each party, including their living expenses, housing needs, and any liabilities.
- The standard of living enjoyed by the family prior to the breakdown of the marriage.
- The welfare of children, including their financial, educational, and emotional needs.
- The age of each party and the duration of the marriage. Longer marriages might lead to more evenly split arrangements, reflecting the contributions made by each spouse during the marriage.
- The physical and mental health of both parties as this can affect their ability to earn income in the future.
- Contributions made by each party. The court will assess contributions made by both the breadwinner and the home-maker including time taken out of the workplace and non-financial contributions, such as one partner staying at home to care for children.
Are international assets included in a Financial Remedy Order?
In an international divorce, the court considers all assets, including those held abroad. Enforcing the order on foreign assets may require additional legal steps, depending on the jurisdiction of the country where the assets are held. Some countries have reciprocal agreements with the UK, which can make enforcement easier, while others may need separate legal proceedings.
How long does it take to get a Financial Remedy Order?
Because it requires several hearings, it can take several months, or even up to a year, for a Financial Remedy Order to be granted. However, there are plenty of opportunities for you to reach a mutual agreement before the Final Hearing, so the length depends on how successful you are in your negotiations.
Is a Financial Remedy Order the same as a Consent Order?
Financial Remedy Orders and Consent Orders are similar in the sense that they both create a legally binding agreement about how finances are to be divided when you split.
However, a Consent Order is when both parties agree on the terms of their settlement out of court. A judge will approve the order but will not make it.
A Financial Remedy Order involves the Court making decisions for you when you and your ex-partner are unable to agree.
Can you set aside a financial remedy order?
There are three main grounds for setting aside a financial remedy order:
- Fraud or fraudulent non-disclosure
“Fraud unravels all” (Hale LJ, Sharland v Sharland [2015] UKSC 60). If it can be demonstrated that there was fraudulent non-disclosure during proceedings, then generally the court will set the order aside.
However, the exception is if the party accused of fraud can prove that the fraud would not have influenced a reasonable person to agree to the order; and that the court would not have made a significantly different order had it known at the time the order was made, what it knows now.
- Inadvertent or negligent non-disclosure of facts
If the court would have made a substantially different order, had it been aware of the non-disclosure, it will set aside the order.
In Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424, the wife did not disclose her engagement and subsequent remarriage when she entered into a consent order. This fact undermined the whole case.
The negligent non-disclosure must be ‘material’ to set aside the financial order. What is ‘material’ varies on a case-by-case basis. In subsequent cases, the court has provided some guidance on what ‘material’ is. In the case of Gohil v Gohil [2015] UKSC 61, the court stated that where a party’s non-disclosure is inadvertent, there is no presumption that it was material. The onus is on the other party to show that proper disclosure would have led to a different order on the balance of probabilities. However, where a party’s non-disclosure is intentional, it is deemed to be material; it is presumed that proper disclosure would have led to a different order, unless that party can show, on the balance of probabilities, that it would not have done so (the case of Sharland v Sharland [2015] UKSC 60).
- Mistake
A mistake is where the court, without fault of the parties, does not have the facts when the order is made. The applicant must show that a substantially different order would have been made if the facts were known.
The applicant must show that, at the time of making the original order:
- It was not their fault that the court did not have the facts and
- They could not have reasonably established the facts.
The application to the court must be made reasonably promptly and should not prejudice third parties who have, in good faith, acquired any property interests due to the original order’s subject matter.
Because of the caveats, the court is generally reluctant to set aside an order on the grounds of a mistake, although that does not mean it is impossible to do so.
How can Osbornes Law help?
It is important to explore all possible alternatives before applying for a Financial Remedy Order. Court proceedings can be costly and time-consuming and are best avoided where possible. That’s why our financial settlement lawyers will help you negotiate a Consent Order first and only use a Financial Remedy Order if absolutely necessary.
When it’s not possible to avoid court proceedings, we’ll guide you carefully through the court process, providing you with expert representation at all hearings. We have particular expertise in managing high net worth divorces and international divorces where assets are located overseas. For advice and guidance on how to apply for a Financial Remedy Order, contact Osbornes Law today. Call 020 7485 8811 or fill in the contact form below.
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