Your Guide to Legal Jargon in Divorce from M-Z
The emotional process of divorce is challenging. Entering the legal process, with all the associated jargon, rules and protocols often feels overwhelming. Your Guide to Legal Jargon in Divorce from M-Z is a continuation of my previous blog. Do read that if you haven’t already and share it with someone who will benefit. In this second part, I take some more legal terms you are most likely to come across and explain in plain English what they mean.
Get confident with these to feel a whole lot more empowered as you divorce.
Negotiations and offers in divorce proceedings take place on either an ‘open’ or ‘without prejudice basis’ (see below). When discussions, negotiations and offers are ‘open’ it means that the court can see them. They are used as a stance of strength and belief in your case. You The possibility that the judge will see what you are willing to accept can focus the mind of the other party.
A penal notice is a warning attached to a court order. These can include an order to pay a sum of money or to sell a property. It can include failing to attend court hearings. The notice sets out the penalty for defying the terms of the court order, usually imprisonment or a fine. Penal notices should be taken seriously, and if you receive one you should take advice if you don’t understand what it means.
The preamble is the introductory section of an order. Its purpose is to set the scene – to provide context. It will include the names and details of the parties and the definitions to be relied upon throughout the recital and the order.
The recital states facts or agreements that cannot be included in the financial remedy section. This is usually because they don’t fall within the scope of the court’s powers, yet they are relevant to the parties. Recitals often provide context or expectations about the order. For example, the recitals in a Financial Remedy Order may state that both parties are fully satisfied with the arrangements. A further example might include who will take care of the family pet. In a Child Arrangements Order, a recital may state details relating to the child’s weekly routine. For example, an expectation that the child does homework at both homes.
A Scott Schedule is a table setting out allegations one party is making against another. This might relate to domestic violence or financial misconduct. It enables the court to see the specific issues in dispute. The schedule sets out each allegation factually and in chronological order. As the case proceeds through the court, the judge’s findings against each allegation will also be recorded. Scott Schedules are usually prepared if a positive finding would influence the judge’s decision.
Schedule of Deficiencies
If, once you have seen your soon-to-be-ex-husband’s Form E you have questions about their disclosure, you raise this in a Questionnaire. If the responses to the questionnaire are still inadequate, you can create a Schedule of Deficiencies. This clearly sets out, item by item, the gaps in his financial disclosure. A judge can order your husband to comply with providing the missing information if deemed important to your case.
A skeleton argument is a document produced for the court that outlines the key facts and disputes of the case, ahead of the trial.
Undertakings a included in a court order as promises to do, or not do, something. For example, an order might state that you undertake to sell the marital home within a certain time period or to not leave the country with your children. Undertakings are legally enforceable, though often allow for ‘best endeavours’. So, in the house sale example, if you were unable to complete the sale within the specified time, but could evidence that you had made great efforts to do so, it is unlikely the court would impose a penalty.
Without Prejudice or Without Prejudice save as to costs
Without Prejudice refers to letters sent to you or by you that are not meant to be seen by the judge. Most typically you start sending or receiving these once you start financial negotiations. It’s important that you do not inadvertently send an ‘open’ offer as this can be shown to the judge. Equally, if you do share ‘without prejudice’ documentation with the judge they would need to stand down and you’d need to start the hearing again – you may even liable for the costs!
The exception to without prejudice offers is at the Financial Dispute Resolution Hearing. At this stage, the Judge will see all of the offers that have been put forward.
Feeling clearer and more confident as you navigate your divorce? I hope so. If you want to cut through the decision-making haze and the maze of the legal process, I have the coaching skills and legal knowledge to get you in the driving seat of your divorce.
Let’s have a call to see how I can help you get the divorce you need.
The Divorce Alchemist
Emma Heptonstall, the Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a practising family mediator and founder of Get Divorce Ready the online self study and group programmes. Emma is featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com