When a divorcing couple are trying to reach an agreement as to how to share their finances, it can often be the case that the two parties have very different opinions as to what this agreement should look like. This can be for many different reasons. It may be the result of particularly complex finances, or it could be due to the parties being unable to agree on the value of certain assets or liabilities. Whatever the reason, when mediation has not worked and negotiations have broken down, many couples may feel that issuing court proceedings may be the only solution.
Although this may be the right option for some, others may benefit from having a private financial dispute resolution appointment (FDR). When financial proceedings are formally issued, the typical journey through the court starts with a First Appointment. The aim of this hearing is to ensure the parties have everything they will need to be able to negotiate effectively at the second court hearing, which is the Financial Dispute Resolution hearing (or FDR).
The aim of the FDR is for the parties to negotiate a financial settlement with the help of a family judge. The judge will be given all the relevant information they need to reach a decision as to how they believe the finances should be split. The indication that the judge puts forward is not binding on the parties, but it is intended to give the parties a steer as to the sort of order a court would impose should the matter proceed to a final hearing for a decision.
What is a private FDR?
A private FDR follows a similar structure to a court-ordered FDR but is conducted away from the spotlight of formal litigation. If both parties are in agreement that a private FDR should be held, they will agree on a candidate to act as the judge (normally an experienced barrister) and arrange a date and location for the appointment.
The preparation for a private FDR will be the same as for a normal FDR. Each party will work with their solicitors to fully brief their own barristers, who will then put their case (in the form of ‘submissions’) to the judge on the day. The judge listens to counsel’s submissions before giving their view on how the finances should be split. Much like a normal FDR, this view is not binding, but it is a strong indication of what the court may order.
Should the parties disagree with the judge’s opinion, there is always the option of a court-ordered FDR but it is usually sensible to timetable the matter for a final hearing (with further negotiation to take place in the interim.
Why have one?
There are several benefits to having a private FDR. In the current uncertain climate owing to COVID-19, there is the possibility that the family courts may close again at short notice, or limit court resources only to emergency hearings.
If this is the case, a private FDR (which can also be conducted via teleconference or Skype) can be an alternative, ensuring the proceedings can continue to progress.
Even before the outbreak, the family courts were experiencing a significant level of demand. In an ideal world, the judge assigned to preside over an FDR will have read and digested the background papers to the case beforehand. But court lists are increasingly long and there are only so many hours in the day for this important work. An FDR is usually allocated around an hour in the court diary.
With a private FDR, the parties choose the time and location of their hearing and their judge will have had the time to read and consider all the relevant background to the matter. They will be able to spend an entire day listening to submissions and formulating their opinion. This is simply not possible at a court FDR.
As a result, the parties are more likely to reach a settlement than if they tried to examine all the issues within a one-hour time slot.
Much has been made of the perceived expense of alternative forms of dispute resolution and it is true, there is an associated cost for the Judge. However, that does not make the private process the preserve of the wealthy. While a more senior barrister (or retired member of the judiciary) may be suitable for cases with a suitable level of complexity, there are an overwhelming number of junior barristers capable of hearing more straightforward cases. The price of entry is lower if the parties are prepared to think practically. This additional expense could result in a costly and time-consuming final hearing being avoided, so it is likely to be more cost effective in the long-term.
If you are considering your options in relation to financial arrangements upon divorce or separation, our team of specialist family lawyers can assist. Do not hesitate to contact us at mail@burgessmee.com or on 0203 824 9950.
Written by Jessica Keal.
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