What is a Final Hearing?
A judge will impose a settlement if you and your husband or wife cannot agree a financial settlement between you. This settlement will be decided by the judge at a final hearing, having heard evidence from both of you. The Final Hearing is usually the third and final court hearing when a Judge will make a decision on your finances. This article will set out what you should expect at a Final Hearing.
When does a Final Hearing happen?
It is not possible to apply directly to the court to get a Final Hearing listed. You must usually have at least one, and usually two or more shorter hearings first.
First Directions Appointment (FDA)
After you or your spouse have issued financial remedy proceedings in Form A, the court will normally list the matter for a First Directions Appointment (FDA). This is mostly an administrative hearing. You should attend and if possible, instruct a barrister to represent you. During this hearing or before, you and your spouse should try to agree what steps need to be taken in order to progress the proceedings. Your solicitor will advise you what directions are appropriate, and try to agree these with your spouse’s solicitor. If directions can be agreed in good time before the hearing, the hearing can be avoided. The judge will review agreed directions on paper and this saves on the legal costs of a hearing. If these directions can’t be agreed, a judge will impose them at the hearing.
Examples of directions made at an FDA could be for you to instruct an estate agent to value the family home. Another direction could be for one of you to disclose missing documents, such as bank statements. Sometimes an FDA can involve more complex directions such as joining another party to the court proceedings. This can be required when you or your spouse asserts that a family asset is owned by someone else.
Financial Dispute Resolution hearing (FDR)
At the FDA, the court will set a date for the second hearing. This is known as the Financial Dispute Resolution hearing (FDR). Rarely, the process may be fast-tracked straight to the Final Hearing without an FDR. This may happen if you or your spouse refuses to engage in the court process. You may wish to also read our article on the FDR process.
How to prepare for a Final Hearing
Whether you fast-track to Final Hearing, or have been unable to settle at FDR stage, the Final Hearing will be listed at court. A Pre-Trial Review (PTR) will take place around six weeks before the Final Hearing. The purpose of a PTR is to determine whether all previous court orders and directions have been complied with. At the PTR, the judge will determine whether any additional directions are required for the Final Hearing to be effective. The majority of the preparation for the Final Hearing will be done in the lead up to the PTR.
– Creating a bundle of court documents for the judge to read;
– Preparing a narrative statement setting out your case and addressing the criteria under s.25 MCA 1973;
– Negotiating open and without prejudice offers;
– Arranging for any witnesses to be present if required;
– Organising and briefing a barrister to represent you during the PTR and Final Hearing;
– Calculating costs schedules.
What is a court bundle?
The court bundle is a collection of documents submitted to the court that you and your spouse wish to rely on in evidence. A bundle will therefore include all previous court orders and any expert reports. It will also include Forms E and any questionnaires and replies.
Expert reports may be in relation to pension sharing, the value of a business interest, or the value of a property. Expert reports may be ordered by a Judge at an FDA. These valuations may need to be updated before a final hearing.
What are Preliminary Documents?
Preliminary documents are required to be produced for all financial remedy hearings and should be kept up to date. This includes a chronology of relevant events, which is a timeline of the couple’s relationship, marriage and proceedings so far. A statement of issues briefly sets out the legal issues that the parties disagree on. Examples of issues could be whether one part should receive spousal maintenance. A case summary of proceedings so far should be provided, as well as a position statement with a summary of the orders that you and your spouse seek from the court. Your lawyer should also produce a skeleton argument, an essential reading list for the Judge and a time estimate for the Final Hearing. These documents are ideally drafted by a solicitor and barrister in consultation with the client.
Preparing a narrative statement
You must draft a narrative statement in good time before the final hearing. The court will set a date for your lawyer to exchange your statement with your spouse’s lawyer. This is an important but often complex document which should comply with section 25 of the Matrimonial Causes Act 1973. It is for this reason that we strongly suggest instructing a specialist family solicitor to assist you in drafting your statement.
Negotiating open and without prejudice offers
Before the Final Hearing, you and your spouse should continue negotiating to try and reach a settlement. A settlement will avoid the legal costs associated with the Final Hearing. At Final Hearing stage, offers between the parties’ solicitors via Open offers (visible to the court) and without prejudice offers (offers not visible to the court).
Arranging for witnesses to be present
If there is an order requiring the attendance of additional witnesses (i.e. other than the parties themselves) then they must be given appropriate notice of the hearing and their details provided to the court in good time before they are required to attend.
Organising a Barrister
Whilst it is possible for parties to represent themselves throughout proceedings, it is generally advisable that a barrister (counsel) is instructed for Final Hearings. Counsel can assist with the preparation of the preliminary documents, including the position statement and discuss the case with you and your solicitor before the hearing in a conference. Counsel will present your case during the hearing, as well as cross-examining the other party and any additional witnesses. This can be particularly beneficial as it limits the contact between parties and can help to mitigate any hostility between them. At the end of the Final Hearing, a barrister will also be able to draft the final order in line with the Judgment for the court to approve.
Calculating costs schedules
It is important that you or your solicitor prepare detailed costs schedules before a final hearing. These are important, so that the judge can see what each party has spent on legal costs. It is also needed if you are asking for a costs order against your spouse. Again, you should instruct a solicitor to assist you in drafting these schedules as the process can be complex and must be accurate in order for appropriate costs to be awarded.
Attending the Final Hearing
A Final Hearing is usually listed for 2 – 3 days depending on complexity of the case, however it could be listed for up to 10 days for very complex matters. You and your spouse will be required to attend on each day. You will agree and be told in advance how long the Final Hearing is expected to last and you should ensure you are available all day for each day of the hearing. The Final Hearing may in fact take much less time than it is listed for or it may take longer. Sometimes a case does not finish and is “part-heard”. This means it will be listed at the next available date before the Judge, which can be in days or even weeks. The court does not sit on a Saturday or Sunday.
In the weeks and days before a Final Hearing, the court will have imposed various deadlines for the submission of the court bundle and other documents. These deadlines (directions) must be met to ensure that the documents provided can be relied upon by either party during the hearing. Both parties will therefore have an idea about what the other side’s position will be prior to the start of the hearing.
What happens at a Final Hearing?
The Applicant’s barrister will provide opening submissions to the Judge, followed by the Respondent’s barrister. These submissions will usually summarise the case in order to familiarise the Judge with the facts of the case. After opening submissions, the Applicant will give their examination in chief (the Applicant’s barrister will question the Applicant during the hearing). The Respondent’s barrister will then cross-examine the Applicant. After this, the Applicant’s barrister can re-examine the Applicant to clarify anything further. If the Applicant has any witnesses, the same process will follow for them.
The Respondent’s barrister will then begin questioning the Respondent. The Applicant’s barrister will cross-examine the Respondent before Respondent’ barrister has the opportunity to re-examine their client. If the Respondent has any witnesses, the same order and process will follow.
Following cross-examination, which normally takes up the majority of the Final Hearing, the Respondent’s barrister will give their closing submissions to the Judge. Having heard all the evidence, this will be the Respondent’s final position in relation to financial remedies. The Applicant’s barrister will then give their closing submissions, after which the Judge will decide whether to give Judgement orally (usually after a brief recess) or if Judgement will be written and “handed down” after the Judge has had time to reflect on the Hearing.
Most Judgments will be provided within the week after the Final Hearing but this can vary greatly depending on complexity of the case and the availability of the Judge.
How we can help you:
The information above is general guidance about Final Hearings for financial remedy proceedings. What will happen in your case may vary depending on your circumstances. If you have a Final Hearing listed, or are otherwise considering issuing financial remedy proceedings in England and Wales then please do contact us for assistance. You can contact us directly at firstname.lastname@example.org or telephone our London team on 0207 846 5460.