THE HEARING

This is usually in chambers before the district judge and will be in private. It is usually very informal. The applicant’s witnesses are called, cross-examined and the various lawyers for both the respondent and applicant will address the court.

The President’s Direction of 1995 set out the sorts of things that the court would require, and since 2000 Practice Directions there is a format for the content of the bundle of non-emergency cases which include:

• a summary of the background to the hearing, usually on one page;
• a statement of the issues;
• a summary of the order or directions sought by each party;
• a chronology for a final hearing;
• skeleton arguments;
• copies of all authorities relied on.

The order

The sort of things that would appear in the order are:

• Periodical payments do not necessarily run from the date of the order, but can be backdated.
• The order may be registered in the Family Proceedings Court.
• Costs can be ordered or allowed for.
• Taxation for costs for public funding if ordered.

Liberty to apply should be included to enable the parties to return to court if difficulties should subsequently arise. This is for the implementation of the order, and not for variation of the order.

Either party may appeal within 14 days of the order.

Orders sought

The kind of orders sought include:

• 1.Clean break.
• 2.Transfer of property.
• 3.Share portfolios and motor cars.

You will be asked for details of specific transfers, variation or dispositions, which you are asking the court to deal with.

You will need to set out if you are seeking to transfer any property or asset, and you will have to identify the asset in question.

If you are seeking a variation of a pre or postnuptial settlement you must identify the settlement. If you are seeking an avoidance of a disposition order you must identify the property to which this applies.

Consent order under the MCA 1973, S33a

If the parties agree the court has the power to make a consent order. Application is simply made by one party or the other on Form A for an order in the agreed terms, lodging with the application two copies of the draft order, which must be signed by the respondent agreeing to the terms.

There needs to be a short statement of information called a Rule 2.61 form. This allows the court to make the order on sufficient financial information. The lawyers, not the court, draft the order and the court approves it.

Frank disclosure

It is regarded as good practice that all the parties give a full and frank disclosure. The idea is that once this has happened that there is likely to be a fairer result in the consent order.

Therefore even where there is not likely to be a contested situation then the parties should ask for the Forms E to be exchanged in draft together with tax forms. This will result in saving of time and cost if there is to be a contested case. The most amount of work in an ancillary relief case is the preparation of all the paperwork. If the parties are co-operating from the start the full disclosure may not be necessary.