When a person applies for a financial order in divorce proceedings a clearly defined timetable will be set out.
The first Court hearing is known as the FIRST DIRECTIONS APPOINTMENT or ‘FDA’.
The Judge will expect Form E’s to have been exchanged, together with Statements of Issues, Chronology, statement of Costs to date and Questionnaires well before you come to Court. The notice of hearing will set out the deadlines for this which you should stick to. If you are happy that all disclosure has been provided you can choose to use the FDA as an FDR.
The FINANCIAL DISPUTE RESOLUTION HEARING “FDR” is the second hearing in the process. It is titled FINANCIAL DISPUTE RESOLUTION HEARING as the emphasis is on negotiation to seek to settle the case, the FDR is designed to focus minds on outstanding financial matters and most cases end up in a binding agreement at the FDR stage which concludes matters and does away with the need for a further, contested final hearing where a judge will decide the outcome of the case.
By FDR stage you will each have done Form E’s and sought clarification on any Form E answers. You and your spouse or partner should have disclosed all necessary financial information so that you both feel comfortable reaching a settlement. The purpose of an FDR is for the judge to try and have the parties reach a settlement if not the judge will set the case down for a 1 day or 2 day evidential hearing.
At court everyone involved in your case will be called in to see the judge. The solicitors, or barristers, will set out the background of your case, and explain to the judge the positions of each party and where negotiations have got to.
The judge will usually ask the lawyers questions to see if issues have been narrowed, and where the parties still disagree – you are very unlikely to have to say anything in court.
When the judge feels there is enough information, he/she will give what is termed “an indication”, explaining what outcome he/she would order if in the position of deciding the case at a final hearing.
This indication is not binding in any way and is no guarantee of the outcome at the final hearing, but it is useful for concentrating the parties minds and have them consider the strengths and weaknesses of their case and the potential effect on the outcome at a contested hearing. A vast majority of cases, they settle at the FDR stage.
The purpose of the FDR hearing is for the judge to encourage discussion and negotiation between you and your spouse or partner. It is important to consider this hearing as an opportunity to settle as reaching a resolution at this stage could save considerable further expense compared to if matters need to proceed to a Final Hearing. Often an FDR will take all day with the parties going in and out of court 4 or 5 times as they inch nearer a settlement.
You have to accept that the starting point is a 50-50 split. Their has to be very good reason to seek to argue for a 60-40 or 70-30 split.
So what happens at an FDR?
Each party will meet at court an hour or so before the hearing is scheduled to take place.
This gives the parties an opportunity to discuss the outcome you each seek before the case is called on .
What about the hearing?
During the hearing, the Judge will encourage parties to settle and in many cases the judge will be quite forceful on that. The Judge will generally give an indication as to which elements of each party’s position he prefers and the decision he would make if the matter was at Final Hearing stage. The Judge at the PDR cannot sit on the final hearing and does not hear evidence at the FDR, and you will not need to give any oral evidence. The Judge will advise both parties of the importance of reaching a settlement at this stage due to the cost implications of attending a Final Hearing – this can be particularly helpful if your spouse or partner has not engaged in negotiations thus far.
The FDR hearing is “without prejudice” to either spouse or partner’s position at any Final Hearing. This means that if matters cannot be agreed, the Judge at FDR is not permitted to hear the Final Hearing.
If there are any remaining areas of disagreement at FDR, further directions can been made and incorporated into a court order showing what further evidence is needed before the Judge at a Final Hearing can make a final decision.
Can we continue to negotiate after the hearing?
Absolutely! Both parties will be actively encouraged by the judge, to negotiate and reach a mutually satisfactory agreement on the day. Although most FDRs are only listed for an hour, you should expect to spend the whole day at Court if negotiations can lead to an agreement.
If an agreement is reached at FDR, a draft order will be written up on the day and the Judge will approve it.
Equally, if matters have not settled at FDR this does not mean that you cannot continue to negotiate. There is often several months between the FDR and the Final Hearing and so further discussions to try and settle can be held.
In some cases matters do not settle and asking a judge at a Final Hearing may be the only way to decide how to divide assets.