What happens when your divorce goes to court?

What happens when your divorce goes to court? Podcast for Smart Divorce

Tamsin Caine talks to Katie McCann, Barrister and Family Lawyer from Knights in Manchester and Wilmslow, about the court process, what happens and whether it is still possible to come out the other side with an amicable solution.

Katie specialises in all aspects of family law, but with a particular interest in high net worth divorce, private children matters and wealth protection, i.e pre and post nuptial agreements and cohabitation agreements for living together couples. She has a particular interest in acting for sports and media personalities, business owners, professionals and entrepreneurs.

Clients describe her as being a down to earth and no nonsense lawyer. her number one aim with every client is to guide them through their legal journey and separation as smoothly as she can, being both sensitive to their needs, but being pragmatic and realistic at the same time.

Katie can be contacted on 01625 704163 or by email at katie.mccann (a) knightsplc.com.

Transcript

Hello and welcome to the Smart Divorce podcast. This podcast is for you if you’re thinking of separating, already separated or going through divorce. My name is Tamsin Caine, and I’m a chartered financial planner. We’ll speak to some fantastic specialists who can help you to get through your divorce, hopefully amicably and start your new chapter positively. Now, over to today’s guest.

Tamsin
Good afternoon and  welcome to the Smart Divorce Podcast. I’m delighted to be joined today by Katie McCann, who is a partner at Knights Solicitors. She is also a barrister, so hopefully she’s going to give us some great insights today about what it’s like going to court when you’re getting divorced. How are you, Katie?

Katie
I’m absolutely fine, thanks Tamsin!

Tamsin
Can you start off by talking us through the process of going to court?

Katie
So the process of going to court is – it can be really overwhelming to some people. And there are a lots of horror stories and the myths about what goes on behind the doors in the court. So what I thought I’d do is just to dispel a couple of those myths really today. And just talk first of all about the process on how you actually get to court and how the hearings are divided. So when you make an application to go to court the first time that you actually go, it’s for directions hearing. And the directions hearing is where what you do is you decide what extra information you need. Do we need to value any properties, do we need to value any pensions, any businesses? Are there any holes in the disclosure that both parties have already made? And do the parties need some time to answer any questions that the other side has raised? And the judge will set out a timetable for all those things to be done. So, all that happens at first directions appointment and lots of people come away from that appointment thinking: “was that it? Is that all that happens?” Because they are expecting Rumpole of the Bailey and to be cross examined. It’s a very kind of administrative, straight forward and most of the time, quite quick hearing.

Tamsin
So when they go into court, are they… Who is in the room? Is it a big sort of wooden chamber with the judge and somebody typing and loads of people in the gallery? Does it look anything like you see on the telly or is that it’s just nothing like that?

Katie
So, that all depends on which court building you are going to attend.

Tamsin Okay!

Katie
So if you are at the high court in London,  the Royal Courts of Justice – yes, some of those courtrooms are very Dickensian looking and they’re all very kind of dark oak with, you know, very ornate dark and the judges sat on a bench, which is really, really high. And you kind of have to crane your neck to look up. But thankfully, those sorts of court rooms aren’t really used around the country. So if, for example, you went to court in Manchester, you would probably go to the Civil Justice Centre, which is in the middle of Manchester City Centre and the building looks like a big filing cabinet all made of glass. And all the courtrooms are really really modern. So you go into the courtroom and they’ve got carpet and like beech coloured wood. And not very big, they are light and bright and airy. And generally, with this sort of court application we would be heard by a district judge. And they would be sat on the bench at the top, and there would be in front of them, there would be on the court usher / clerk. Now they sit there and they work the tape machines. Nobody’s typing. That does not happen anymore. You have a recording. And they will sit there and do the recording. And they would just mess about, do some some of their papers and their own administrative work whilst the hearing is going on. And then in front of the bench where the judge is sitting, you will have one of the parties so, let’s say the husband and he will be sat next to his solicitor, and he will have his barrister in front of them if they have contracted a barrister. And on the other side of the courtroom you will have the other party with their representatives. And they don’t at any stage sit face to face so you wouldn’t be sat across the table looking at each other, going to court everybody’s eyes are forward looking at the judge. So certainly in Civil Justice Centre in Manchester the court is incredibly modern. And, it’s certainly not like the courtrooms that I described at the beginning.

Tamsin
Excellent! Okay. Sorry I interrupted you. So after that hearing, what happens next?

Katie
The next hearing is what’s called a dispute resolution hearing. Most cases settle at that hearing because everybody has worked really hard to answer everybody’s questions, have all the valuation evidence that they need and the FDR hearing, that is, dispute revolution hearing, is created for all the parties and their representatives to roll up their sleeves and negotiate and come out with a deal at the end of that particular day in court. And on the judge’s role, at an FDR is to act basically like a chairman at a business meeting. And he will sit and listen to the husband’s side of the story through his barrister’s  submission. And he will hear exactly the same from the wife through their barrister’s submission. So he hears both sides of the story. So both parties get to say what they think should happen and why. And the judge then will have read all of the papers, hopefully, read all of the papers. Sometimes they don’t have time to do that. But they then sometimes will ask questions, just filling the holes in their information. And they do sometimes address the questions to the parties themselves, and they do sometimes speak to the husband and wife directly. It’s not like cross examination. Nobody’s being put under the cosh as it were, but the judge will sometimes address the parties directly The judge then will sometimes take a coffee break, have a think about both parties’ positions and come back and give the reasoning; will give their indication as how they think this case should settle. A really good FDR judge will explain their reasoning as to why they’ve reached where they’ve reached. We’ll give a little bit of a spread of positions for the parties to take. But generally a good FDR judge will go somewhere in the middle of where the husband pitched his case and where the wife had pitched her case. A very bad FDR judge, in my opinion, will completely side with one of the parties because what that does is it entrenches that particular party to think I am right. My case is 100% right. Therefore if you don’t agree with me, other side, then we ain’t settling this today. The whole point of a financial dispute resolution hearing is for the parties to work really hard together with their representatives and the judge to bring the conclusion to the case that day.

Tamsin
So the judge isn’t actually making a judgement; they’re not actually saying right, sonny, this is what you’re going to do. This is what you’re going to do, Mrs. That’s how it’s going to be… end off… like hit the gavel and that’s that.

Katie
That absolutely does not happen at the dispute resolution hearing. I suppose this is one of the urban myths. You expect the gavel comes down with the judge making a judgement, but he doesn’t do that – it’s a negotiation day.

Tamsin
It’s quite disappointing.

Katie
Well, he’s there to give his view. So he says, if I have to sit on this at the trial, this is the type of order I would be making in this case and he does his best to aid the parties to settle it. What the judge will do is – the FDRs might be listed, you know, so a morning slot, for example. But judges really want people to settle their case. So judges will sit all day if need be whilst the parties are negotiating outside of court, you know, in the conference rooms outside. Judges will sit all day, if that’s what it takes and will invite the parties in and out of the courtroom a number of times during the day to see where they’re up to. Do they need any extra help? Are they struggling with any particular discreet issues and the judge will do everything that they can to help the parties to settle it that day. If though it doesn’t settle… and, you don’t have to accept the judge’s indication.. you may think: “that judge is crazy.” How did that judge come up with that particular view, that can’t possibly be right. And sometimes you do get some wild indications, it does happen. And parties don’t settle. The next stage then is you  do go off for a trial. And the trial is the traditional idea of what it’s like going to court, where it is likely that you would be asked to give evidence and that you would be cross examined. And there could be experts that give evidence and cross examined and then at the end of that process a judge then will give his judgement so the gavel will come down at some point, but only at the end of the trial. Now most cases don’t get anywhere near the trial stage because it costs so much money to get to that point. Everybody’s very anxious about it. Tensions are already high. And going through a contested hearing like that just makes the whole landscape between parties so much worse. So, we as the lawyers do our very, very best to avoid cases going to a trial. Sometimes it can’t be avoided because the parties are so polarised. But they do actually need a judge to make a decision about what should happen. But certainly in my practice I do, and if I do have to go to court to try to resolve something, I will do everything I can to have that result at the FDR stage, which is the second stage along.

Tamsin
Okay, and is that.. the judge that’s there at the FDR stage? Will that be the same judge in the trial, or is it always somebody different?

Katie
It’s always, 100%, someone different. And that’s one of the rules, that’s one of the family procedure rules, it has to be someone different. And that’s so that at the FDR stage, you can be really open with the judge about the sorts of offers that you’ve made, your views on how they should settle. You know, the ups and downs of the case. It’s a very, very transparent hearing. What you couldn’t do at that stage is have the same judge deal with trial because that judge at FDR will have already formed his view on the basis of what he heard that day, what he’s read, how he’s indicated. He will already have formed his view you so he would be the wrong person then to deal with the trial, deal with this impartially and deal with it with fresh eyes. So it’s always someone different. And the negativity of that of course, is if you’ve had a very positive indication at FDR because it’s such a discretionary area of law, you could get to trial and get a different judge who has a completely different idea on how the case should resolve at the end of the day. So you are taking a risk by moving away from FDR and putting it in to the hands of the judge.

Tamsin
I’m often asked what couples are entitled to. What should I be getting from my spouse? But, as you’ve just said, there can be a range, a wild range, of different solutions to divorce, can’t there?

Katie
There’s generally, and often is, range of reasonable solutions to bring the matter to a close and what the court does, what we as lawyers do, we apply something called Section  25 Factors. And Section 25 is a piece of legislation from a long time ago. A list of factors,  which suggests that what we need to look at is, things like the length of the marriage, the earning capacities of both of the parties etc. etc. a big long list of things. So you could get, looking at it from a court perspective, you could get three different judges, for example, who apply those Section 25 factors, but apply them slightly differently so you could get three different outcomes dependent upon which did judge hears the case on which day. So it’s quite hard for family lawyers, and to answer to you, in the in the context you’ve just spoken about, to be able to say to somebody with any absolute degree of certainty: “If you ended up in front of the judge. This is the order that you would get.” And, I would go so far as to say that if a lawyer said that to somebody, they are skating on thin ice because it is an incredibly rare occasion that you are able to give anybody in family proceedings any degree of certainty. What you can do is advise on the scale of reasonableness. You can say look, I think, it will be somewhere between this point and this point and you can  strategically talk through how you are going to structure your case? Hopefully, bring the negotiations to a point that you get a favourable outcome. But what you can’t do is say to somebody, at day one when you see them and looking at their assets, this is definitely how this case is going to conclude. If it’s a small case for example, where there’s just a property with some equity in it. If the assets are limited and the answer is fairly obvious, those are cases, where you can give much more of a clear steer. You still can’t be definitive, but you can given a much clearer steer on where that’s going because those sorts of cases tend to be determined on the parties’ need. So in a lot of cases, it’s fairly clear what the parameters will be to determine somebody’s need. Those cases tend to be a little bit easier when you’re dealing with more limited assets. But no, to come back in a very, very long winded way, one thing to say: It’s really quite hard and, yes, there is always a spread of potential reasonable outcomes.

Tamsin
Okay, so you mentioned earlier on about sometimes couples are polarised on their viewpoints at the FDR stage. They just can’t come to an agreement about certain things. Is there anything that is the usual thing that couples are… find it difficult to agree on? Is there kind of a particular thing, is it a business or a pension usually? Or is it quite often just they can’t come anywhere close to an agreement?

Katie
It could be absolutely anything that the parties disagree on. Sometimes people hold onto certain ideas because of an emotional aspect of things and sometimes people will hold onto certain ideal because their expectations going into the proceedings are high and they haven’t been managed properly by their lawyers, so they think that it’s appropriate and commercial to continue to fight on a particular issue when really it might not be. So, it could be absolutely anything that parties become polarised upon its wholly dependent upon what the facts are in any particular case and what the asset base is in any particular case.

Tamsin
That’s brilliant! So we talk a lot on this podcast about helping couples to resolve things amicably and I understand that in some cases this is a struggle to do without attending court in some way, shape or form. But do you feel that you can achieve an amicable settlement through going to court?

Katie
I think you absolutely can. And I’ll tell you why: sometimes with some couples, not having a court timetable in place, it means that things float on. And, you know,  can go on for significantly longer than they need to. And they can end up spending more costs on things because there isn’t an actual deadline in place to deal with things. So sometimes when it’s appropriate for the parties to do so, and without there being any aggression involved whatsoever, sometimes we do issue an application at the court, knowing that we will get that first directions appointment date from the judge. Knowing that we will have had to have completed our disclosure by particular points in time. And lot of the time what you can do is, if it’s still amicable between the parties and you’ve exchanged disclosure, you’ve already valued the house, you’ve already got the information that you need. You can agree between you, that when you go to court at the first hearing, if there is enough information available to settle the case, that you use that first hearing instead of it being an administrative hearing where we’re just ticking boxes. We use that as, a dispute resolution hearing to roll up our sleeves and finish the case so you can expedite proceedings which does actually save money. But gives the parties a time frame and a timetable that they know they’ve got to adhere to because they’re going to court on a particular day. But can do it in such a way that you can have an amicable hearing at that FDA: finish the case, have an order, have it signed off by judge there and then whilst you are at court  which is another benefit for doing that and then the case is finished so you can use this process amicably if you want to. The negativity of that these days is that the courts are very, very clogged up with applications. They are underfunded… all of these things.  And sometimes you can wait quite a long time once you’ve issued an application to get a hearing date, which sometimes will make it, will make it a difficult process in any event and not necessarily adding any benefit to the party,  But, yes, you can.

Tamsin
So if the court was functioning kind of in a more timely manner than perhaps it is at the moment, you could use it to move things along more, more quickly and in a more timely manner. But at the minute, that’s probably not going to be the case because the courts are very busy. And it could be months before you get a date, that’s essentially what we’re saying,

Katie
Yes, that’s absolutely right. But you can – to come back to your original question – it is possible to come out of these things with an amicable resolution. I have had many cases where we’ve got to the FDR stage and once an agreement has been reached and the parties have got some finality, sometimes you see the weight of the world kind of lifting off their shoulders and you know they’re going to another conference room and give the other party hug and shake their hand, that sort of thing, because it’s actually come to a conclusion. So just because it goes to court doesn’t mean that it will end up, you know, being a fight for the rest of time between the parties. It can resolve amicably and sensibly between them. Look, I think the over riding aspect of all of this is: we wouldn’t necessarily go to court unless you absolutely have to. And if there is an out of court way of dealing with things in a very quick and amicable fashion then that is the route, in my view, that you should take.

Tamsin
Yeah, I totally agree with that. Thank you for joining me today, Katie! Is there anything else that you want to add to what you’ve said today?

Katie
I don’t think so. Hopefully I have covered most things from my experience as well as a barrister and having dealt with these things for many years. But certainly if anybody ever wants to ask me any questions, I’ll be more than happy to help.

Tamsin
That’s absolutely brilliant and we will include your contact details in the show notes, if that’s okay with you, if anyone does want to get in touch.

Katie
Fabulous.  Thank you!

Tamsin
Brilliant, thank you for joining me Katie and we’ll see you on the next episode!

Tamsin Thank you for listening to the Smart Divorce podcast. If you’d like details of our guest today or of myself so you can get in touch, please check out the programme notes. Many thanks, see you again soon!