Financial Provision on Divorce: The Procedure

If you and your spouse cannot reach an agreement about how your finances should be divided following divorce, either party can ask the Family Court to determine a financial settlement. This is known as making an application for a financial remedy order, and the court will impose a timetable to resolve the issues if an agreement cannot be reached.

Although many financial remedy cases settle before a Final Hearing, it is important to understand how the court process works, what information must be provided, and what to expect at each stage. Financial proceedings involve detailed financial disclosure, court hearings, negotiations, and, where necessary, a judge deciding how assets should be divided fairly.

This guide explains the procedure for financial provision on divorce in England and Wales, from the preliminary requirements through to the Final Hearing.

What is meant by “financial provision on divorce”?

Financial provision on divorce refers to the legal arrangements made to divide finances, property, pensions, savings, investments, and other assets when a marriage comes to an end. Where spouses cannot agree a financial settlement voluntarily, the court has the power to make a range of financial remedy orders.

Depending on the circumstances, a financial settlement may include:

• Property adjustment orders
• Lump sum payments
• Pension sharing orders
• Spousal maintenance
• Orders providing for the sale or transfer of property
• A clean break order, where appropriate

Every case is different. There is no fixed formula for dividing assets following divorce, and the court has a wide discretion when deciding what outcome is fair. The judge will consider the circumstances of both parties, the available assets, and, where applicable, the needs of any children before making a decision.

While court proceedings remain available where agreement cannot be reached, many couples are able to resolve financial matters through negotiation, mediation, or solicitor-led discussions before a Final Hearing becomes necessary.

How does the court decide financial provision?

When determining financial provision on divorce, the court considers the individual circumstances of each case. Rather than applying a strict mathematical formula, the judge exercises discretion while following the factors set out in Section 25 of the Matrimonial Causes Act 1973.

Among the most important considerations are:

• The welfare of any dependent children
• The income, earning capacity, property, and financial resources of each spouse
• The financial needs, obligations, and responsibilities of both parties
• The standard of living enjoyed during the marriage
• The age of each party and the duration of the marriage
• Any physical or mental disability
• Contributions made by each spouse, whether financial or non-financial
• Pension provision and future financial resources

Following key decisions of the courts, judges also consider the principles of needs, sharing, and, in appropriate cases, compensation. In many divorces, meeting the parties’ reasonable needs will be the primary consideration, particularly where there are dependent children or limited assets available.

The Financial Remedy Procedure

If an agreement cannot be reached in relation to an overall financial settlement between the parties during divorce proceedings and an application is made to the court, then the procedure and timetable for determination of the financial remedy application will be imposed by the court.

The preliminary matters to be considered, together with the court procedure, are set out below.

Preliminary matters

1. The overriding objective

The courts are required to ensure that all financial remedy cases are conducted in such a way that justice is promoted, that the resources of the courts are used appropriately, and that cases are conducted proportionately.

A judge determining the case will consider both parties’ income and capital needs, together with the overall fairness of any order they may make. The objective throughout the proceedings is to achieve a fair outcome based upon the particular circumstances of the case.

2. Jurisdiction of the court

A spouse cannot initiate the process which will ultimately lead to an overall financial remedy order without divorce proceedings having first been issued under the no-fault divorce process.

A couple may, of course, reach an agreement at any time and agree to implement it. However, it is only the issuing of divorce proceedings which gives a judge the jurisdiction to consider a financial remedy application and make the appropriate order.

Furthermore, the judge cannot make a final order dealing with, for example, capital, the family home and other property, or make a pension sharing order, until the decree nisi of divorce (the penultimate stage in the divorce proceedings) has been pronounced.

In addition, unless agreed otherwise by the parties themselves, an order dealing with lump sum provision, capital, property, pension sharing, and certain trust assets cannot usually be implemented until the decree absolute terminating the marriage has been pronounced.

3. Financial disclosure and the pre-action protocol

Before financial remedy proceedings progress, there is a pre-action protocol requiring both parties to provide each other with full and frank financial disclosure. This means exchanging information and supporting documentation at an early stage so that meaningful negotiations can begin.

It is also important that pension information is obtained as early as possible, as some pension providers can take a considerable amount of time to produce the required information. This is particularly true of certain public sector pension schemes, including NHS and Teachers’ Pension Schemes.

Providing complete and accurate disclosure is one of the most important parts of financial remedy proceedings. Failure to disclose relevant information may delay proceedings and, in some circumstances, lead to costs consequences or further court applications.

Before making a financial remedy application

Before issuing a financial remedy application, most applicants are required to attend a Mediation Information and Assessment Meeting (MIAM) unless an exemption applies, for example where there has been domestic abuse or the application is urgent.

The purpose of the MIAM is to provide information about mediation and other forms of Non-Court Dispute Resolution (NCDR), helping couples explore whether financial matters can be resolved without court proceedings.

The Family Court actively encourages parties to consider mediation and other appropriate forms of Non-Court Dispute Resolution throughout financial remedy proceedings where suitable. Even after proceedings have begun, the court may encourage the parties to continue exploring settlement before a Final Hearing.

If mediation or another form of NCDR is not appropriate, or does not result in an agreement, either party may proceed with a financial remedy application.

N.B. Some couples may also be eligible for the Family Mediation Voucher Scheme.

The court procedure step-by-step

If either the petitioner or the respondent to the divorce proceedings wishes to begin financial remedy proceedings, the procedure is generally as follows.

Step 1: Issuing the financial remedy application

An application by a spouse for financial provision is issued with the court office using Form A.

When a financial remedy application is filed (the relevant court fee is £321), the court office will allocate a 30-minute appointment with a District Judge on the next available date, usually approximately 12 to 16 weeks ahead.

This hearing is known as the First Directions Appointment (FDA).

The date cannot normally be changed without very good reason and only with the permission of a District Judge.

Step 2: Serving the application

The Form A is served upon the other party within four days of being issued by the court.

The applicant’s solicitors may choose to serve the respondent themselves if they believe service may otherwise be avoided.

Pension providers and mortgage companies must also be served where appropriate. A certificate confirming service upon pension providers and mortgagees should be filed with the court and served upon the other party.

The Form A is accompanied by a Notice of Proceedings confirming:

• The date of the FDA hearing
• The deadlines by which further documents must be completed
• The timetable for the remainder of the proceedings

Step 3: Completing Form E

Each party must complete and sign a detailed Financial Statement known as Form E.

Form E provides comprehensive information about:

• The parties and any children
• Income
• Capital assets
• Pension provision
• Financial needs
• The standard of living during the marriage
• Financial and non-financial contributions
• Any other relevant circumstances which may assist the court

The Form E also specifies which supporting documents must accompany the statement.

These commonly include:

• The last three payslips
• The latest P60 (and P11D where applicable)
• Up-to-date valuations for all properties
• The most recent mortgage statement for each property
• The previous 12 months’ bank statements for every account in which a party has an interest
• Surrender valuations for any insurance policies
• The last two years’ business or partnership accounts together with evidence of the current estimated value of the business
• Up-to-date pension valuation documentation
• The latest investment statements or dividend counterfoils
• Tax assessments (or confirmation from an accountant) where a party is self-employed
• Any additional documents required to explain or support the financial information provided

Once completed, the Form E must be signed.

Step 4: Exchanging financial disclosure

The completed Form E must be filed with the court and exchanged simultaneously with the other party by the date specified by the court.

Pension providers may also request a copy of the Form E.

During the four weeks following exchange, each party considers whether additional financial information is required from the other.

Each party will prepare:

• A questionnaire requesting further information
• A concise statement identifying the issues the judge will be asked to determine
• A chronology of the major events in the case

These documents are exchanged between the parties before also being filed with the court.

They must be filed and served at least 14 days before the FDA hearing.

At this stage:

• Confirmation of service of Form A must be provided if required
• The parties should consider whether the FDA remains necessary or whether the appointment could instead proceed as a Financial Dispute Resolution hearing if sufficient information is already available

Step 5: Costs estimates

Immediately before the FDA hearing, each party must prepare a written estimate of the legal costs incurred to date using Form H.

The estimate should include anticipated costs up to the Financial Dispute Resolution hearing if settlement is not achieved beforehand.

Only costs relating to financial remedy proceedings are included. Costs associated with divorce proceedings themselves, child arrangements, or injunction applications are excluded.

If one party wishes the court to consider making an immediate costs order – for example, because the other party has failed to provide financial disclosure or has deliberately delayed proceedings – a detailed schedule of costs must be served at least 24 hours before the hearing.

The First Directions Appointment (FDA)

The First Directions Appointment (FDA) is normally the first court hearing within financial remedy proceedings. Its purpose is not to determine how assets should ultimately be divided, but to ensure that both parties have provided sufficient financial information for negotiations and the case can progress efficiently.

The purpose of the FDA hearing is to limit the issues to those which are genuinely relevant, thereby reducing unnecessary delay and legal costs.

A District Judge will consider the parties’ statements of issues and seek to narrow the matters in dispute.

The judge will also consider, and if necessary order:

• Which questions raised within the questionnaires should be answered
• What additional documentation should be produced
• Whether expert evidence or property valuations are required
• Whether pension reports should be obtained
• Whether any further witness evidence, schedules, or statements are necessary

Expert evidence will usually be obtained jointly at the parties’ shared expense.

The District Judge will then determine the next stage of the proceedings, which will usually involve listing the case for a Financial Dispute Resolution (FDR) hearing. Occasionally, where further information is still outstanding, an additional directions hearing may be listed before the FDR.

After the First Directions Appointment

As mentioned above, the District Judge at the FDA hearing will direct a timetable for the production of any additional documents and information required before the case can progress.

Those directions must be complied with within the timescales set by the court. No further information, documentation, or evidence may usually be relied upon without the permission of the court.

The court office will notify the parties when and where the next hearing will take place. In most cases, this will be a Financial Dispute Resolution (FDR) hearing, although occasionally there may be a further directions hearing if additional disclosure or expert evidence remains outstanding.

Where an FDR hearing has been listed, each party must notify the court of all settlement offers made, together with any responses received, at least seven days before the hearing.

Immediately prior to the FDR hearing, both parties must also prepare updated costs estimates using Form H.

Where pension sharing orders, transfers of property, or other specialist financial arrangements are proposed, it is sensible to obtain approval from pension providers and/or mortgage lenders before asking the court to approve the order.

The Financial Dispute Resolution (FDR) Hearing

What is an FDR hearing?

The Financial Dispute Resolution (FDR) hearing is one of the most important stages of financial remedy proceedings. Its primary purpose is to encourage the parties to reach an agreement without the need for a contested Final Hearing.

Many financial remedy cases settle either at, or shortly after, the FDR hearing. Reaching an agreement at this stage can significantly reduce legal costs, shorten the overall timescale, and avoid the uncertainty of a final court decision.

The objective of the Financial Dispute Resolution hearing is to attempt to reach an agreement to settle the case.

Both parties and their legal representatives are required to attend court at least one hour before the hearing begins in order to engage in negotiations.

These discussions are legally privileged, or without prejudice, meaning they cannot be referred to at any later hearing if settlement is not achieved.

The only exception is any open offers that have previously been made, which remain visible to the court.

What happens at the FDR hearing?

During the hearing, the District Judge will consider the information available and invite the parties’ legal representatives to outline their respective positions.

The judge will then provide an indication of what they believe would represent a fair overall financial settlement based upon the available evidence.

This judicial indication is intended to assist the parties in assessing the strengths and weaknesses of their respective positions and to encourage realistic negotiations.

It is important to remember that:

• The judge’s indication is not legally binding
• Neither party is obliged to accept it
• The judge conducting the FDR will not normally hear the Final Hearing if settlement is not achieved

This allows both parties to negotiate openly without concern that any discussions will influence the judge who ultimately determines the case.

At the conclusion of the hearing, any documents referring to without prejudice negotiations or offers must be removed from the court file and returned to the parties.

The District Judge has the power to:

• Adjourn the FDR hearing
• Approve a final financial order where agreement has been reached.
• Give further directions where additional evidence is required
• Fix a date for the Final Hearing
• Make any other procedural directions considered appropriate

If agreement cannot be reached…

Although many financial remedy applications settle during negotiations or at the FDR hearing, not every case can be resolved by agreement.

Where settlement is not achieved, the court will make further directions regarding the preparation of the case for trial.

These directions are intended to ensure that all outstanding evidence has been obtained and that the Final Hearing can proceed efficiently.

The court will also notify the parties, through their solicitors, of the date fixed for the Final Hearing if that date has not already been provided at the conclusion of the FDR hearing.

Preparing for the Final Hearing

If the FDR hearing is unsuccessful, the judge will make directions orders regarding the further evidence that must be prepared before the Final Hearing.

This often includes updated disclosure, expert evidence, witness statements, or further valuation evidence where appropriate.

Prior to the Final Hearing, both parties are required to prepare a Section 25 Statement.

This document sets out:

• The principal facts relied upon
• The relevant statutory factors
• The financial orders sought
• The reasons those orders are considered appropriate

Each party must also set out their open proposals for settlement.

The applicant must file and serve their proposals at least 14 days before the Final Hearing.

The respondent must file their own proposals within seven days of receiving the applicant’s offer.

Trial preparation

In preparation for the Final Hearing, the applicant must also prepare, and where possible agree with the respondent:

• A summary of the background to the case
• A chronology
• A schedule of assets, liabilities, income, and expenditure
• A paginated court bundle containing the documents to be relied upon during the hearing

Immediately before the Final Hearing, both parties’ legal representatives will prepare and file position statements setting out their clients’ arguments and explaining why the court should make the orders sought.

These documents assist the judge in understanding the issues before oral evidence begins.

The Final Hearing

What happens at a Final Hearing?

The Final Hearing is the stage at which the court determines any issues that the parties have been unable to resolve themselves.

Unlike the earlier hearings, the judge will hear evidence before making a legally binding decision regarding the financial settlement.

Once again, each party must prepare and file an updated costs estimate using Form H1.

This estimate is considerably more detailed than the Forms H used earlier in the proceedings.

At the Final Hearing:

• Both parties will give oral evidence
• Each party may be cross-examined
• Any expert witnesses directed to attend will also give evidence unless their written reports have already been agreed
• The judge will consider the documentary evidence contained within the court bundle
• Both parties’ legal representatives will make submissions on behalf of their clients

Having considered all of the evidence, the judge will summarise the issues before giving judgment.

In some cases, judgment is delivered immediately.

In more complex cases, the judge may reserve judgment and provide their decision at a later date.

Costs after judgment

Once judgment has been handed down, each party may make submissions regarding legal costs.

The judge will then decide whether either party has behaved in such a way during the proceedings that a costs order should be made against them.

Such orders remain relatively uncommon in financial remedy proceedings.

The general rule is that each party bears their own legal costs, although the court retains discretion where one party has behaved unreasonably, failed to comply with court orders, or deliberately increased the costs of the litigation.

Implementing the financial order

Once the judge has made a Final Order, it will either be:

• Typed by the court office, or
• Drafted by the parties’ legal representatives and approved by the judge.

The approved order is then served upon the parties’ legal representatives so that implementation can begin.

Implementation may involve:

• Transferring property
• Paying lump sums
• Implementing pension sharing orders
• Selling assets
• Bringing ongoing maintenance arrangements into effect

Appeals

If legal advice indicates that there are proper grounds to challenge the court’s decision, notice of appeal must generally be lodged within 14 days.

However, appeals are not common.

This is because judges dealing with financial remedy proceedings are afforded a wide discretion when determining what represents a fair outcome.

Accordingly, an appeal cannot be based simply upon dissatisfaction with the decision itself. There must be proper legal grounds for challenging the judgment.

Can financial matters be agreed without going to court?

Yes. Many separating couples are able to reach an agreement about their finances without asking the court to determine the outcome at a contested Final Hearing.

Negotiations can take place directly between solicitors, through mediation, collaborative law, or other forms of alternative dispute resolution. Even where court proceedings have started, settlement discussions can continue at every stage, and many cases resolve before the Final Hearing.

However, where an agreement has been reached following divorce, it is usually advisable to have that agreement approved by the court in the form of a Consent Order. This makes the agreement legally binding and can help prevent future financial claims between former spouses.

If agreement cannot be reached, the financial remedy procedure described above provides a structured timetable for resolving outstanding issues.

Alternatives to financial remedy proceedings

Court proceedings are not always the only way to resolve financial issues following divorce.

Depending on the circumstances of the case, alternative methods of dispute resolution may provide a quicker, more cost-effective, and less confrontational route to settlement.

These include:

Solicitor-led negotiation

Many financial settlements are achieved through negotiations between each party’s solicitors. This allows both parties to exchange financial disclosure, discuss settlement proposals, and work towards an agreed outcome without asking the court to decide.

Family mediation

Mediation involves an independent, specially trained mediator helping separating couples explore possible solutions. The mediator does not make decisions but facilitates constructive discussions with the aim of reaching a mutually acceptable agreement.

Collaborative law

Collaborative law allows both parties and their collaboratively trained solicitors to work together through a series of meetings to resolve financial issues without court proceedings wherever possible.

Arbitration

Family arbitration enables an independent arbitrator to determine financial disputes outside the court system. The process is generally more flexible and can often be completed more quickly than traditional court proceedings.

Where agreement remains impossible despite these methods, the court retains the power to determine the appropriate financial settlement through financial remedy proceedings.

Key points to remember

Financial remedy proceedings are designed to provide a fair framework for resolving financial disputes following divorce. Although the process can appear lengthy, many cases settle well before a Final Hearing once full financial disclosure has taken place and negotiations have progressed.

Every family’s circumstances are different. The court has a wide discretion when determining financial provision, taking into account the parties’ resources, needs, obligations, contributions, and, above all, the welfare of any dependent children.

Obtaining specialist legal advice at an early stage can help you understand your position, prepare the necessary financial disclosure, explore opportunities to settle matters without prolonged litigation, and protect your long-term financial interests.

Disclaimer

This information sheet has been prepared to highlight some key issues relating to financial provision on divorce. It is intended to provide general guidance only and should not be relied upon as a substitute for specific legal advice.

The information is based upon our current understanding of the legal position and may be affected by subsequent changes in legislation or case law.

Speak to our family law solicitors

Have we answered all your questions about financial provision on divorce? If not, our experienced family law solicitors are here to help.

Whether you are negotiating a financial settlement, considering mediation, or involved in financial remedy proceedings, our specialist divorce lawyers can provide clear, practical advice tailored to your circumstances.

Submit a contact form or call us on 01273 956 270.

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