FDAs and FRDs: Tips for practitioners

A divorcing couple do not usually have a lot of money to spare, so it is incumbent on the court, and their representatives, to try to resolve the issues as soon as possible, preferably at the first directions appointment (FDA).

Is all the information available? 

Forms E will need to be exchanged, but there is a lot more than that required, and there are so many occasions when the case has to be adjourned because an essential piece of the jigsaw is missing. Ensure you have valuations of the family home: a market appraisal, or three, will do in most cases. 

What is the mortgage capacity of the parties? 

If there is a pension, what is the value (particularly if the pension has been built up while employed as a civil servant, policeman, fireman, or the like)? Consider whether an actuarial valuation is required and whether the cost is proportionate to the ?sums involved.

What do the respective parties want? 

Often this piece of information is missing from form E and no one thinks to ask. I always do. ?I refer to what is at the top of their wish list. There is always a surprised pause when such a question is asked, but when ?the parties start to think about it, the occasions when the respective wish lists marry ?up are a surprisingly large proportion. The most frequently occurring example is the husband who wants to retain his pension and the wife who would like a larger share of the property. It is not rocket science.

Are questionnaires necessary? 

Compiling and answering questionnaires can be unnecessarily expensive. ?The first appointment must be conducted with the objective of defining the issues and saving costs. What the court is keen to do is identify the real issues in the case, and there are likely to be only two or three. If the questions do not relate to the issues, they are going to be struck through. Think only about the essential questions; there may be only one or two.

Conduct 

This needs to be exceptional ?to have any impact on the outcome, so, again, be sensible about what you advance. The court needs to grapple with ?this right at the outset, so be prepared.

Can the FDA convert to a financial dispute resolution hearing (FDR)? 

The parties may well have said no in their notices, but be prepared for the judge to ignore that, particularly where there are very few assets. Or, the judge might like to express a view depending on which way ?a particular issue is likely to be resolved. That can be helpful to the parties.

Directions by consent

I am afraid I hardly ever go along with such an approach, especially when there is provision for questionnaires which have not yet been drafted. How will I know if ?the questions are relevant? ?You may request such an order because you are missing some information and need an adjournment, but that does ?not mean directions should be made and then an FDR listed. Much better to simply adjourn, consider the issues at the time, and, hopefully, resolve the matter at the first hearing.

Is an FDR necessary? 

There will, of course, be occasions for further directions to be given at the FDA and an FDR listed, particularly where the situation is more complicated. But bear in mind that the rationale of this appointment is a meeting for the purposes of discussion and negotiation. The parties may not want it, but the judge is very likely to insist on it. Again, be prepared for the judge to push the parties further than you might have anticipated. I am afraid I often say that I am not letting anyone out of the court building until they have settled. The parties may look at me askance, but if the judge insists, there is often a concluded settlement.

District Judge Julie Exton is president of the Association of Her Majesty’s District Judges