What do you do if your ex-partner doesn't file their Form E in divorce proceedings?
If your ex-partner doesn’t file their Form E in divorce proceedings, you will need to take certain steps including informing the court, threatening to seek a costs order against them and you may even seek an order which includes the risk of them being sent to prison.
Why is the Form E so important in divorce proceedings?
In financial proceedings on divorce, the Form E is the most important document. It is a financial statement setting out your entire financial position in terms of assets, liabilities, income and expenses. It also includes information relating back to the section 25 factors (the basis upon which the court will come to a decision on your case if the case gets all the way to a final hearing).
A lot of people underestimate the importance of this document, but it really is the backbone of your case.
What is the procedure for filing the Form E in divorce proceedings?
Once financial proceedings are issued at court, there are various things the court will ask you to do before the first hearing takes place and the first of those things is complete your Form E. You have to complete this about 5 weeks before the first hearing. You then file it with the court and arrange to mutually exchange yours with the other parties’.
Three weeks later you have to file and exchange:
- A questionnaire,
- Statement of issues
- Form G
The Questionnaire is a list of questions you ask of the other party in relation to anything that is missed in or needs clarification on, in their Form E.
Of course, if the other party does not file their Form E, then you cannot prepare this document.
If the other side fails to produce their Form E, you run the risk of the first hearing being ineffective. The reasons for this are:
- Because you do not have the Form E, you are unaware of what assets are available from the other party
- Because you have no Form E, you are unaware what the other side’s position is and what case they are intending on running
- You are unable to agree values of joint assets
- If you do not know what assets there are, it is impossible to try and ascertain what directions you need to ask the court for including whether a joint valuation is required.
- If there is no Form E, you are unable to prepare the documents required by the court thereby causing delay
- It is impossible to try and bring the matter to an early conclusion by making open or without prejudice offers
- If you have instructed a solicitor, you will inevitably be incurring unnecessary costs because of extra work that will need to be carried out.
All of the above means there will be additional delay and cost – all caused by the person who has failed to provide their Form E.
So, what do you do when the other side fails to provide their Form E?
- Put the other side on notice that you will inform the court of their conduct and that if the hearing is going to be ineffective that you will be seeking your costs from them (this is especially important if you are represented by solicitors)
- Continue to chase the other side for their Form E each week so that you have a steady stream of correspondence backing up your case that it is them who are causing unnecessary delay in the proceedings and causing the first hearing to be ineffective
- If you will be seeking costs you must remember to file a statement of costs with the court and on the other side with notice that you are seeking your costs
- At the first hearing, ask the court for
- A penal notice attached to a direction that the other side files their Form E – this is incredibly serious and if the other side fails to file their form E when subjected to a penal notice then they may be held in contempt of court, which carries the punishment of being sent to prison, fined or having your assets seized.
- A costs order against the other party
- Depending on the complexity of the case you may wish to simply re-timetable to a re-listed first appointment hearing OR timetable it all the way up to the FDR hearing.
If the other side still wont file their Form E, then you will need to seek to enforce the penal notice.
Ordinarily, a threat of a penal notice is enough to ensure a Form E is filed.
It is also very important to note that judges tend to take an incredibly dim view of those who do not file their Form E due to the detrimental impact it will have on a case.
My advice? Prepare your Form E, in full, accurately, and on time. And if the other side fails to do theirs, take action as early as possible! You can get a Form E from the court website.