In a series of blogs about the process of getting a financial remedy through the courts in the context of divorce or dissolution, we take a look at each stage in turn.
The majority of cases do not reach Final Hearing as parties are encouraged to try to settle matters before this point. It can be very expensive to pursue a case all the way to Final Hearing, and it is often much more palatable for parties to agree a settlement than have one imposed upon them at court.
It can often take a long time after the FDR for a Final Hearing to be scheduled because of the over-subscription of the court but this delay does mean parties have time to negotiate further in case agreement can be reached and the Final Hearing dispensed with after all. Final Hearings are usually listed for a whole day (unless there is a need for experts to attend court to give evidence or there are complex issues, when it will be listed for two or three days).
Usually, the judge at the FDR will have ordered for financial disclosure to be updated so that the court has up-to-date information to work from. Other directions may be ordered at the FDR to ensure the judge at the Final Hearing has as much information as possible.
At the Final Hearing, the applicant’s barrister, (and parties do usually use barristers as these hearings are often quite complicated), will present the applicant’s case to the judge. The respondent’s barrister then sets out the respondent’s case to the judge. The applicant then gives their evidence from the witness box, and is taken through questions by their barrister which help develop their case. The respondent’s barrister can then “cross-examine” the applicant by asking questions usually about issues the parties cannot agree on. The applicant’s barrister can then ask the applicant some further questions to help clarify or deal with any issues which were raised in cross-examination. The respondent then undergoes the same process with their barrister beginning with questions to set out the respondent’s case in more detail. All evidence is given under oath, which means parties are under a legal obligation to be truthful. The judge can interject to ask the parties or their barristers questions. After the parties have given evidence, expert witnesses are called (if any) and the barristers will be able to ask questions of them.
Both barristers will then make closing arguments to sum up their party’s case. The judge then needs time to deliberate their decision (sometimes an hour, sometimes a few days) and will then make an order in terms they think are fair and justifiable based on the evidence they have heard. This order will be binding on the parties.