Court Applications & Proceedings
What are Court Applications & Proceedings?
The Courts have wide ranging powers to make a variety of Orders in relation to separating and divorcing couples and same sex couples who have entered into civil partnerships. Subject to meeting certain residence and domicile requirements, individuals who wish to invoke the Courts powers can do so at any time, by issuing a Court application.
The Court can make Orders in relation to the division of financial assets, future financial support for spouses and children of married and unmarried parents and disagreements concerning children.
Depending upon the type of proceedings issued, once an application to the Court has been made, the Court will schedule a hearing at which a Judge will timetable how the proceedings are to progress.
Although it is not necessary, the overwhelming majority of people who choose to resolve disputes through the Court process instruct solicitors and barristers to represent them and to assist them in navigating the proceedings.
Why Court Applications & Proceedings?
Clients, who use the Court process, benefit from legal advice and guidance throughout the proceedings. In particular, some clients feel unable to negotiate with their former partner face to face. The instruction of solicitors and barristers in Court proceedings, also act as a buffer between a client and their former partner.
During the course of the legal proceedings, but particularly in relation to financial proceedings, all parties are under an obligation to provide full and frank disclosure of all relevant circumstances. Accordingly, the Court can order a party to divulge certain information and documentation. If this duty is not complied with and Court Orders are flouted, the Court may impose financial penalties, in the form of costs orders.
In relation to financial proceedings for married couples and civil partners, the Court has in its armoury a number of Orders which it can grant, which include but are not limited to the following Orders:-
- Maintenance payments to a former spouse or civil partner;
- Maintenance payments for children of the family;
- Property adjustment orders which involve changing the ownership of property or ordering that the property be sold;
- Lump sum payments;
- Pension sharing orders;
- Injunctive Orders, freezing assts to prevent their dissipation, or injunctive orders preventing a party to proceedings from doing something or to compel the other party to proceedings to do something.
Once the Court has granted an Order, both parties to the proceedings must comply with its terms, failing which they will be held in contempt of Court, which is punishable by fine or in the worst cases, by imprisonment. This element of compulsion is attractive to some clients who suspect that their spouse may not otherwise provide full disclosure.
Unlike mediation and collaborative law models, parties to litigation are guaranteed a resolution to matters at the conclusion of the proceedings.
Why not Court Applications & Proceedings?
Court proceedings are comparatively time consuming, stressful and expensive, particularly where disputes between the parties become protracted.
The Court system is also adversarial in nature and in some cases one or other party places an undue emphasis on winning, which often has a detrimental impact on future relationships. This is particularly unfortunate where there are children involved.
Whilst the parties are guaranteed a resolution at the conclusion of the proceedings, the result is one, which is imposed on parties by a Judge who is effectively a stranger and has no particular understanding of the parties’ priorities and interests.
As the Judge will exercise, his or her discretion when making an Order, the result of litigation can be unpredictable.
As such, an Order granted by the Court will not always be to the parties liking.
Court proceedings are not suitable for couples who wish to retain control over the timing, pace and outcome of the process. It may be that alternative dispute resolution processes such as mediation or collaborative law are more appropriate.
