While it may seem like just another form to fill out in the process of finalising your divorce, your Form E is arguably the most important document that you will have to prepare. It is therefore crucial to ensure that the information that you include is a fair representation of your finances and income needs. It is advisable to seek professional help from a Solicitor when filling it out, particularly in respect of your statement of financial needs and the narrative sections at the end.
What is Form E and why is it so important?
Form E is your financial statement and must be filled out by both parties if an application for financial relief has been made to the court and the court has given Directions in advance of people attending the First Appointment. It includes all of your assets, earnings and financial needs and will form the backbone of your case. The court will use it to get an understanding of your finances and to reach a decision on how the marital assets should be divided. It is therefore important to get it right, as its contents will influence how the court will look at the “section 25 factors” that it has to consider in financial proceedings.
Your Form E may be the only opportunity to ensure that the court has all the information that you want it to have, as the court does not always ask for the parties to prepare witness statements, even if your case has to go to trial. This means that the contents of your Form E may be the focal point of your evidence and it is likely that you will be asked questions about its contents.
The form has a straightforward structure that allows you to present a clear picture of your finances and set out your case. As such, it is often useful to exchange Forms E on a voluntary basis even if proceedings have not been issued and you are planning to resolve the financial settlement outside of the court setting. The Form E is valid for the duration of proceedings but may need to be updated after a period of 6 months in order to ensure that it continues to represent an accurate picture of your finances.
What are the Section 25 factors?
These are the factors that the court has to take into account when considering how the marital assets and incomes should be divided and include:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would be reasonable to expect a party to the marriage to take steps to acquire;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
- The value of any benefit which either party will lose the chance of acquiring through the divorce.
A well-constructed Form E will address most of the section 25 factors and makes it more likely that you will achieve a fair settlement that has taken those factors into account.
What information needs to be included in Form E?
The form is divided into the following sections:
- General information
This includes your details, your housing arrangements, any other court cases that you may be involved in with your ex-partner (for example, child arrangement proceedings) plus details of any children and their living arrangements.
- Financial Details
This section contains details of all your assets including any property, bank accounts, pensions, life insurances, shares, businesses and any assets worth over £500. It should also contain details of your liabilities including mortgages, credit card debt and loans. You will need to provide supporting documentation for all assets and liabilities (see below).
- Financial requirements
This should include a complete household budget. It is advisable to go through this with your Solicitor to ensure that you include everything that you will need. Of course, you will not know what will happen and budgets need to have some basis in reasonable expectation, so the expression of ‘requirements’ should be understood to be flexible and not transformed from a ‘wish-list’ to uncompromising list of ‘needs’ set in concrete. It is to assist the judge get an idea of what may be required as part of potential ‘packages’.
- Other information
This section covers most of the section 25 factors that are not already covered in sections 2 and 3 or Form E. It includes any changes to your income that have happened or are likely to happen in the next 12 months, details of any contributions that the court should consider and any conduct issues that are relevant to the financial proceedings.
Bad ‘Conduct’ needs to be exceptional to be considered and for most people, financial behaviour will be looked at as one of ‘all the circumstances’ not in isolation.
- Order(s) sought
This should include details of the order you are asking the court to make (for example, sale of any property or any claim for maintenance). You should discuss this section with your Solicitor in order to ensure that you are aware of the full powers of the court and ask for the right order to be made. If you are exchanging Form E on a voluntary basis, you may want to leave this section blank in the first instance until you have a clear understanding of the matrimonial assets that are available.
- Declaration of truth
As above, it is important that the information that you put into the form is accurate as it forms a significant part of your evidence in financial proceedings. You can be held in contempt of court if you lie on the form. Whilst a solicitor is permitted to sign the Form E, as so much is outside their personal knowledge, it is customary for the divorcing person to sign so that the solicitor cannot have been said to have misled the court if it transpires that what was said was incomplete or inaccurate in some way.
What supporting documents do I need?
There is a list of supporting documents at the end of Form E. The most common documents that you will need are:
- 12 months of bank statements for every bank account.
- Copies of any valuations of property – a valuation from an estate agent will suffice. You will only need to get a surveyor’s valuation if there is a significant dispute over the property’s value.
- Credit card statements for the last 12 months
- Details of any loans and up to date loan statements
- If employed, 3 months payslips and your P60
- If self-employed, a copy of your last tax assessment, or a letter from your accountant outlining your tax liability. You may need to provide the management accounts for period after your last tax assessment.
- If you have a business, you should include the past 2 years’ of business accounts.
- The Cash Estimated Transfer Value (CETV) for your pension – you should try to obtain this as soon as possible because they can take some time to process.
What should I include in my financial needs?
You should include all your income and capital needs in this section. Your income needs include items such as rent/mortgage payments, household bills, fuel/travel, food, childcare, insurance premiums.
Capital needs will include the amount of money that you will need to buy a new property, car, white goods, furniture if applicable.
The best way to go about this is to go over your previous spending. It is important to remember that the court and your ex-partner will have copies of your past 12 months of bank and credit card statements, so the financial needs that you state need to be in line with what you have been spending. Of course, some totals will be different now that you have separated, but financial needs stated that are well out of step with your previous spending (such as leisure costs, hairdressing, mobile phone bills) are not likely to be taken into consideration unless there is a good reason for the increase.
What should I include in section 4 of Form E?
It is recommended that you obtain legal advice before filling out section 4, as your Solicitor will be able to advise you as to whether any contributions you have made during the marriage will be taken into account by the court, and whether it is worth setting out any bad conduct. The court will only take conduct into account in very particular circumstances, particularly ones which have had a significant impact on the family finances (such as significant gambling debts or reckless dissipation of resources).
What orders should I ask for in section 5 of Form E?
It is worth discussing section 5 of the form with a Solicitor. The court can make orders such as a pension sharing order, orders for maintenance (both for yourself and for any children) and the power to order that a property be sold. In some circumstances it may even be appropriate to ask for an order that delays the sale of the matrimonial home until the children have completed their education.
While the court has a broad range of powers, any orders that you are asking for do need to be realistic if you want the court to make them at the end of proceedings. You should therefore seek legal advice before filling out section 5 of Form E.
What happens after filling out Form E?
Form E is usually done 5 weeks before the First Directions Appointment (FDA). The next step will be for you to go through your ex-partner’s Form E to see if you think it is accurate. If you have any questions arising from it, then you will need to send a questionnaire to their representatives highlighting any inaccuracies or omissions. You will also need to file a statement of issues, a chronology and a Form G.
What is a Form G?
Form G is a notice that states how you would like to use the FDA – if there are any outstanding issues then it will be used as a directions hearing, but if all disclosure is complete then it could be used as a Financial Dispute Resolution hearing (FDR) which is a hearing in which the judge gives an indication of how they think the case would be decided and invites the parties to settle to avoid further costs. If the circumstances are clear and the parties need guidance as to what the judge thinks might be appropriate, then using the hearing as a FDR is a helpful exercise in working towards a realistic agreement. If no agreement is reached at a FDR, that judge is not allowed to participate further in the litigated case.
My ex-partner is refusing to fill out Form E. What should I do?
Your ex-partner does not have to fill out Form E unless you have made an application to the court. If they are still refusing to make disclosure after you have issued proceedings then your FDA will not be effective, because you and the court will not have the information that you need. This could end up costing you money if you are paying for a Solicitor or Barrister to represent you at court. In order to avoid this, you should:
- Put them on notice that you will be seeking your costs if the FDA is ineffective;
- Write to them regularly to request the Form E (you can then show the court that you have been chasing the document);
- Ensure that you have been compliant with all orders and that you have provided all the information required of you (to avoid the argument that the FDA would have been ineffective anyway);
- File a statement of your costs with the court and with your ex-partner (or their Solicitor);
- At the FDA, ask for the ‘wasted’ costs of the hearing (the additional expense that has been caused by their non-compliance) and for an order that they file the Form E. As they have already failed to comply with a court order, you may want to ask the judge to attach a “penal notice” to the order. This means that your ex-partner could be held in contempt of court for failing to comply with it.
What should I do first?
Don’t delay! Some of the information that you need will take time to obtain. Speak to a Solicitor as early as possible in proceedings as they will be able to guide you through the financial sections of the form and in particular advise you in relation to sections 4 and 5. You should also start the process of putting together your supporting documents. Make sure that they are in an organised state before sending them to your Solicitor as this will reduce your costs. Most Solicitors can organise them for you, but this will obviously cost you more money.
Can I have a barrister do my case?
You will know the date of the First Appointment when you hear that you are obliged to complete a Form E, so you would be able to book a barrister for that hearing. Some barristers will attend court under the Direct Access scheme, but will usually prefer to have a solicitor organise the case for them, as their role is to present the case to the court, which is difficult for them to do effectively if the supporting papers are not properly drafted and there has not been professionally informed dialogue in advance. A good outcome depends on good preparation and with Direct Access, you miss out on the expertise that a solicitor can bring to the case and make the barrister’s job more difficult.
Do I need both a solicitor and a barrister?
A good – i.e. informative – Form E is a team effort and if your case is complex, then your solicitor might suggest that it is looked at by a barrister before being finalised, signed and exchanged. That way, legal issues that might need to be dealt with by the judge will have been expressed in the same way that the advocate will present them. A badly-drafted Form E can undermine your case by giving the judge bad points to consider instead of the best ones.
Solicitors usually charge an hourly rate which can make their attendance at court more expensive than a barrister, so it may be cheaper to have the advocacy done by a barrister, who will usually be paid on a semi-fixed fee, depending on their seniority.
With the other supporting documents – chronology, questionnaire and Statement of Issues all being based on the Form E, it is prudent to engage an expert to give yourself the best chance of having your views understood and a better chance for an outcome that is fair.
Related Articles
Load More