Asking the right questions at an early stage, pinpointing the areas of default and placing the failings on “record” are all likely to be helpful steps both in the short and longer term, should the matter proceed to trial.
Adverse costs orders can begin to cumulate and will often send a clear message to any final hearing judge in respect of the non-compliant party’s character and credibility, as well as having a bearing on the sums ultimately awarded to one party over the other.
Orders can be sought which prevent a party putting or advancing certain aspects of their case unless and until they comply with a court order and, in more extreme circumstances, a party can be prevented from making applications until they comply with that ordered of them.
At a contested hearing, adverse inferences can be sought from the court which will likely infiltrate the court’s assessment of the assets and resources. In such circumstances, the court should be asked to make specific findings in respect of a party’ alleged conduct.
Where there are children of the marriage, or of the family, it is important to remember that they will be the court’s first consideration in the financial proceedings.
Far too often, one party acts in such a way towards the other during the financial proceedings that it has a negative impact on the wellbeing of the children, whose needs will take priority within the financial award.
What can thereafter also ensue are costly and damaging parallel Children Act proceedings. If matters can be dealt with in an amicable, or at least civil, fashion, it may well obviate this further round of litigation and the consequent cost.
The courts are wholly supportive of mediation, and/or out of court based negotiations.
This can be even more beneficial if it engaged with before litigation is even initiated, saving each the financial and emotional cost of adversarial proceeding.
If the parties commence proceedings with the courts but express a desire to put a hold on it to enter into meaningful discussions, the courts are almost always willing to grant the parties the time they require to do so.
Parties should give serious consideration not just to mediation, but to private financial dispute resolution hearings (often referred to as PFDRs) where they are afforded a genuine opportunity to resolve their financial claims against one another in a calm and professional setting.
Another option, where the parties have reached the point of no agreement, is for them to engage in arbitration. This will provide them with a binding and enforceable decision without delay.
Rosanne Godfrey-Lockwood is barrister at 4PB
