Divorce. When Do You Show Your Hand?

The family court is quite different from the civil court which deals with a civil claim

. They may both be heard in the County Court but family cases are different from civil proceedings where a cards on the table from the start approach is adopted. In family cases the objective is to reach a fair settlement between the parties rather than to arrive at a finding on the facts put before the court.This was explained by a senior judge in the following way:

the judicial task [in family proceedings] is very different from the task of the judge in the civil justice system whose obligation is to make findings on all issues in dispute relevant to outcome. The quasi-inquisitorial role of the judge in ancillary relief litigation obliges him to investigate issues which he considers relevant to outcome even if not advanced by either party. Equally, he is not bound to adopt a conclusion upon which the parties have agreed.

In civil proceedings a party will start matters off by filing a statement of claim which will set out his case and what he is asking for. There is no statement of claim or any other formal pleading in family cases which sets out what is being claimed.

The reason for this is that until each party have fully disclosed their assets the next stage of how they can be distributed cannot be reached. To a certain extent this is in conflict with the Pre-Action Protocol contained in the Family Proceedings Rules. This requires parties to clarify their claims and identify the issues between them as soon as possible openness in all dealings is essential. When then should you make clear what you are looking for out of the marriage?

Disclosure is always the first stage in ancillary relief proceedings. This is done on Form E. This prescribed form allows a party to summarise their case on standard of living, contributions, conduct (paragraph 4); and gives the party the option (if you are able at this stage) to set out the orders they seek (paragraph 5). It is only in a straightforward case that the Form E is sufficient to allow you to set out your case.

The standard directions contained in the Family Proceedings Rules require the filing of a brief statement of the issues and points of dispute before the First Appointment. This will be considered by the judge alongside each parties Form E and will go some way to set out your case and the settlement you are looking for. No provision is made for skeleton arguments and there is no place to argue your case.

If matters are not resolved at the First Appointment-by agreement, mediation or arm-twisting by the judge-the rules require a position statement and all offers of settlement to be filed with the court seven days before the next stage which will be the Financial Dispute Resolution (FDR) Hearing. Further evidence and court bundles may also have to be filed depending upon directions given by the court and complexity of the matter. In the rare few cases which still do not settle and go on to a final hearing open proposals for settlement must be exchanged and sent to the court at least 14 days before the hearing date.

All this results in a fine balancing line. A fair settlement cannot be reached until there has been full disclosure and everybody knows the totality of the - pot '. However set against this are the advantages of an early settlement to reduce the upset, trauma, and probable cost of a protracted dispute.

The sooner things are settled the better so that parties can get on with their lives. What must be guarded against is your spouse on the other side (or often his/her legal adviser) procrastinating and causing unnecessary delay. If this seems to be happening ask the court to make specific directions. For example at the First Appointment it may be useful to ask the court to direct a schedule of assets and order that further statements of issues and position statements be filed. If your opponents position is unclear or seems uncertain request that narrative statements be filed.

Ensure you give your disclosure quickly and fully and make sure the other side do the same. Put forward your proposals for settlement once this is established and force the other side to do the same. Negotiate when this is called for, be prepared to compromise, and do everything to agree a settlement.

by: Andrew John

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