The final hearing in financial remedy proceedings is the moment the court decides how the financial position between former spouses will be resolved. It is usually the most expensive and time-consuming hearing in the case and the one where the most is at stake. Understanding what happens, how the court approaches the issues and what to prepare can significantly affect the outcome.
This guide explains the structure of a final hearing, the law the court applies and how to prepare effectively.
A final hearing in financial remedy proceedings is the trial at which the court hears evidence, considers submissions and makes a final decision on the financial issues between the parties. It comes at the end of the case if settlement cannot be reached at the FDR or in negotiation.
Final hearings are usually listed for one or two days, depending on complexity. Major cases involving substantial assets, business interests or pensions can run for three or more days.
The court applies section 25 of the Matrimonial Causes Act 1973 (and corresponding provisions for civil partnerships). The factors the court must consider include:
The court applies these factors with the welfare of any minor children of the family as the first consideration.
Modern financial remedy law has developed three principles for distributing assets:
Matrimonial assets (those acquired during the marriage) are usually shared equally unless there is a reason to depart from equality. Non-matrimonial assets (pre-marital, inherited or post-separation) are treated differently.
The needs of each party (and any minor children) must be met. Where assets are limited, needs may consume all the matrimonial pot and require contribution from non-matrimonial assets.
In limited circumstances, one party may be entitled to compensation for relationship-generated disadvantage (typically where they gave up a career to support the other party's). This is rare in modern practice.
Before the hearing, the court will already have:
The court starts with brief opening submissions, usually from the applicant first. These set out the case and what each party is asking for.
The applicant gives evidence first, then is cross-examined. The respondent then gives evidence and is cross-examined. Any experts may give evidence and be cross-examined.
Each advocate makes closing submissions, summarising the evidence and applying it to the law.
The court may give judgment immediately, reserve judgment for a later date, or give an initial decision with reasons to follow in writing.
Skeleton arguments are the written legal arguments filed before the hearing. They set out:
A well-drafted skeleton argument shapes the hearing. The judge reads it before the parties speak. Issues identified in the skeleton are usually the issues that get the most attention.
Cross-examination is often the most demanding part of a final hearing. The party giving evidence will be asked questions by the other side's advocate. The aim of cross-examination is to:
Witnesses who are calm, honest and direct usually do well. Witnesses who become defensive, evasive or argumentative usually do not.
The court can make a range of orders:
The court can combine these to produce a tailored outcome.
Make sure your financial position is up to date. Bank statements, pay slips, property valuations and pension values should be current at the date of the hearing.
Your witness statement is your evidence. It should set out the facts in support of your case, clearly and chronologically. It must be honest and accurate.
Documents that support your case (correspondence, contracts, valuations, business records) should be in the bundle.
The ES1 and ES2 documents should be up to date and reflect the current state of the case.
Plan how to travel to court, arrive early, bring water, be prepared for a long day. Final hearings are tiring.
Where significant assets are in issue (businesses, properties, pensions), expert evidence may be needed. The court usually expects:
Expert evidence on pensions (actuarial reports on cash equivalent transfer values, or full pension reports under PODE methodology) is particularly important in cases involving defined benefit pensions.
The other side discloses material close to the hearing. The court may need to deal with this and may permit additional questions.
Where two experts disagree (or where one party has refused single joint expert evidence), the court has to decide between competing valuations.
Allegations of conduct (financial misconduct, hiding assets) are difficult and time-consuming. The court will only consider conduct where it is "gross and obvious".
Defined benefit pensions, public sector pensions and pension protection issues are technical and often require expert evidence.
Valuing a business in a divorce involves judgments about future earnings, multiples, control discounts and liquidity. These are technical issues for experts.
Most final hearings start at 10am or 10:30am. You should arrive at court at least 30 minutes before to meet your barrister, check the bundle and prepare. The hearing usually involves:
Final hearings can be intense. Eating beforehand, drinking water and taking breaks when offered all help.
If the court gives judgment immediately, the order will be drafted by the parties and approved by the court. If the court reserves judgment, you will receive the written judgment in due course (usually within a few weeks). The order will then be drafted and approved.
Once the order is made, both parties are bound. The order can be appealed (within strict time limits) or, in limited circumstances, set aside. But the starting point is that the order is final.
A final hearing is the most significant moment in any financial remedy case. The decisions made bind both parties for the rest of their lives. Full barrister representation is strongly recommended.
A direct access barrister can prepare your skeleton argument, conduct your case at the hearing, cross-examine the other side and present your case in closing submissions on a fixed fee.
Direct access means you can instruct a specialist barrister without going through a solicitor first. This is often faster and significantly more cost-effective, particularly where the case is already part way through. Send us a short outline of your case and our team will respond the same working day.