Questionnaires in financial remedy proceedings

When trying to resolve financial matters you might hear your or your spouse’s solicitor talk about questionnaires, but what are they and what purpose do they serve? In this blog, we take a look at the questionnaire and its purpose.

When I see clients for a first meeting, I explain that financial disclosure is really the foundation stone for the resolution of financial matters. This is because without having full and frank financial disclosure, you cannot know what is in the matrimonial pot, and therefore what an appropriate financial settlement might look like.

There is an absolute duty on parties to financial remedy proceedings (and their advisors) to disclose their assets in a full, frank, clear and up-to-date manner. The questionnaire is a part of this process and can follow on from the exchange of Forms E.

You can read more about financial disclosure and the Form E in my colleague Hazel’s blog: https://www.familylawpartners.co.uk/blog/what-is-financial-disclosure

What is a questionnaire?

Questionnaires can follow the initial exchange of disclosure, which will often take place by using the Form E.

The use of questionnaires comes from the procedure followed in financial remedy proceedings. Once a party has made an application to the court for a financial remedy, certain standard directions will be made and a timetable set to take the parties up to the First Appointment hearing. These are contained in a document called a ‘Notice of a First Appointment’. One of the directions made by the court will be that “if a party wishes to raise questions regarding the financial disclosure of the other party, then that party must send to court and to the other party a questionnaire”.

To get some more information about what exactly ‘a questionnaire’ is, you need to turn to some rules known as the Family Procedure Rules (FPR) which govern family court proceedings. It is the FPR that states that:

Not less than 14 days before the hearing of the first appointment, each party must file with the court and serve on the other party… a questionnaire setting out by reference to the concise statement of issues any further information and documents requested from the other party or a statement that no information and documents are required

Unfortunately, for solicitors and lay clients alike, the FPR does not go into any further detail about what exactly the questionnaire should contain aside from linking the document to the statement of issues.

The statement of issues is a document that has largely been superseded since the family court introduced a new form, the composite case summary, or ES1, back on 11 January 2022, so that FPR reference does not, unfortunately, help make the situation clearer. What the ES1 tries to do is to give the court a snapshot of the potential issues in the case i.e. is one party alleging that the other is not disclosing all their capital assets. Quite how a questionnaire will assist here is not clear. Presumably, if that party has failed to list all of their capital assets in the Form E, they will adopt the same approach with any further questions asked of them.

The other guidance from the court on questionnaires is with regard to their length – they “should not exceed four pages of A4 in length (using not smaller than a 12-point font with 1.5 spacing)”. Unfortunately, it is not uncommon to see questionnaires vastly in excess of this page limit.

So far, so unclear.

Do I have to raise a questionnaire?

Absolutely not, and if you do not need to, then you should not.

If you simply have a couple of questions about your spouse’s disclosure, or if some documents were missed from the enclosures to their Form E, then consider whether that can just be dealt with by correspondence. It will save costs in the long run.

Unless there is something that you genuinely need to know about your spouse’s finances, then you should not be raising a questionnaire.

What is a questionnaire not?

It is, in some respects, easier to say what a questionnaire is not.

1. A fishing expedition! Despite what some people might think, the opportunity to raise a questionnaire is not so that you can ask all manner of questions about your ex’s finances: why did they spend £100 in Pizza Express, who were they in Rome with, why are they spending money in Tiffany’s etc. etc.Questions about bank transactions should really only be asked where it is unclear where or why funds are being spent/transferred and if there is a potential risk that matrimonial assets are being dissipated or diverted to an account that has not been disclosed. If you know what a transaction is, ask yourself, do you really need to ask your spouse to clarify? What is the purpose of asking and where will it get you? The number of times I have seen questionnaires ask a party to identify transactions which are clearly related to the family home outgoings (i.e. with reference ‘Bill payment to EDF energy’) or where every transaction that is over £500 is queried, seemingly ‘just because’. Those types of questions are not only pointless but also increase costs and hostility between parties (because preparing a reply to a questionnaire can be a fairly big undertaking).
2. A chance to interrogate your spouse’s schedule of outgoings. Many people might conduct a line-by-line analysis of their spouse’s schedule of income needs at this stage, and while it is important to correctly assess income needs, this type of in-depth analysis should be left for Counsel to deal with if matters progress to a final hearing. That is where each party will likely be cross-examined on what they say they need by way of income (it is then that a party saying they need £300 per month for a gym membership when they have never used a gym before will be taken to task!).
3. A place to request updating disclosure. Do not ask for copies of documents like bank statements and payslips to cover the period between your exchange of Forms E and the date of the questionnaire. This is because you are likely to get all of that information in updating disclosure, which, if you are in court proceedings happens shortly before the FDR and final hearings. If you are not in court proceedings and matters are taking a long time to resolve, then it is likely that an agreement will be made about updating disclosure. Instead, documents requested should only be those that were not included with the Form E when they should have been. If you know your soon to be ex-spouse has just received a bonus and need to know what the value of that bonus was, then the situation is a little different and asking for a copy of a payslip or bank statement to demonstrate that is acceptable.

When asking for a document, consider whether it will ever be referred to again? Will it help you get to the bottom of something that is unclear? Or are you just asking for it for the sake of asking?

4. A way for you to set out your own position on particular issues in the case – there should not be long swathes of narrative in a questionnaire. The clue is in the name – it is for questions.

Are questionnaires only relevant in court proceedings?

No.

However you are resolving your case, you need to understand the financial position of your spouse and need to know what is in the matrimonial pot. As such, even if you are not in court proceedings, you may need to raise questionnaires to help you get to the bottom of the financial landscape.

Questionnaires can be appropriate to use in both voluntary matters and where there are court proceedings.

Hannah Gumbrill-Ward, an Associate Solicitor in our Brighton team.

If you have any questions about how to deal with financial matters on divorce, please contact our specialist team who will be able to help you.