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Divorce – How are Finances Divided?

PLEASE NOTE: THIS ARTICLE IS OVER 1 MONTH OLD

divorce finances

It is important to note that no Family Lawyer will be able to tell you exactly how your finances will be divided if your matter proceeds through the Family Court. This is because Family Lawyers are not Judges and each case is different. The law gives the Judge that will hear your matter room for interpretation and therefore it is not one size fits all.

Divorce and finances are two separate matters, however they do often go hand in hand. When you get divorced there is no obligation for you to deal with your finances. If you are the Applicant in Divorce proceedings (prior to 6 April 2022 this was known as the Petitioner) then you will be asked if you want to apply for any additional Orders, in particular a Financial Order. It is always good practice to tick this, even if you don’t believe you wish to seek any Financial Orders.

Should you have assets and finances that you do wish to divide with your Spouse then it is important that you seek legal advice.

It may be that you and your Spouse are amicable and therefore without acrimony you are able to agree your finances between yourselves.  You must be aware that any agreement reached between yourselves, unless it is recorded in an Order, is not legally binding and therefore you do not have any protection and either party can renege on the agreement.

What can a Financial Order Include?

Financial Orders can vary greatly and may encompass the sale or transfer of property, the sale or transfer of business assets, the transfer or closure of bank accounts, pension sharing orders, lump sum payments, maintenance payments, school fee payments.

Every matter is different and therefore Financial Orders are tailored to your financial position.

You may have a Verbal Agreement, a Separation Agreement, a Mediation Agreement, no agreement or a Court Order. Any agreement reached can be recorded by yourselves, lawyers, mediators or the Court but to have any such agreement recorded into an Order then it must be sealed by a Judge within the Family Court.

How do I get a Legally Binding Order?

A legally binding Order may be granted in two ways.

It may be that you and your Spouse have reached the agreement by yourselves and it has been recorded in a Consent Order which has been approved by the Court or you may have to make an Application to the Court for a Judge to decide how your assets are to be shared, and this is recorded in a Court Order.

The only way your agreement can be legally binding is by way of a Consent Order or a Court Order.

Do I need to attend Mediation if we cannot agree?

If you decide you want a Financial Order through the Court because you cannot agree the matter between yourselves, then prior to making any Application to the Court the parties must attend a Mediation Information Assessment Meeting (MIAM). You are required to provide your MIAM Certificate prior to your application being processed. If there is urgency it is possible to issue a court application without attending mediation

How do I apply for a Financial Order?

You need to file a Form A with the Court, which you can do yourself online or our lawyers at Andrew Isaacs Law will do this for you. There is a court fee of £275.

Once you have made an Application to the Court then the Court will begin to set a timetable of what you are expected to do, and how your financial information is to be disclosed and exchanged.

Financial Disclosure

To be able to seek clear concise advice, Lawyers need full and frank financial disclosure. Once Court proceedings are issued then the Court will set out a timetable of how and when financial information is to be disclosed and exchanged and when questions can be asked on this information.

Financial information can be exchanged on a voluntary basis or by way of a Court Application.  In the absence of disclosure then no Lawyer is able to advise you on the merits of your case. If the disclosure requirements as set out by the Court are not complied with, then adverse inferences can be drawn by the Court.

The Court Form used for Financial Disclosure is called a Form E Financial Statement. It is beneficial to look at this form to understand how much information you are required to disclose. Andrew Isaacs Law can guide you through this form and if you can provide the information requested, they can fill out this form on your behalf and navigate you around it and that of your spouse.

What will happen at Court?

It is important to note that you may agree at any point, so even if you agree prior to your First Hearing, your agreement can be recorded in a Consent Order and lodged with the Court.

There are three stages in Court to obtaining a Final Order if your matter doesn’t settle sooner.   There is a First Appointment, a Financial Dispute Resolution (FDR) and then the Final Hearing. At each Court Hearing the Judge will encourage both parties to try their best to reach agreement without the need for the Court to decide.

How will Matrimonial Assets be Divided?

Each person’s financial situation is different and as previously mentioned the law is open to interpretation, however our lawyers can give you in depth advice on what areas of law the Courts will consider.

Section 25 of the Matrimonial Causes Act 1973 sets out what the Court shall have particular regard to;

  • The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future,
  • The financial needs, obligations and responsibilities of the parties,
  • The standard of living before the breakdown of the marriage,
  • The age of the parties and duration of marriage,
  • Any physical or mental disabilities of the parties,
  • The contributions made and the conduct of the parties.

50/50

The Court’s starting point is equality and that means all matrimonial assets being divided equally between the parties. However, this is not how everyone’s assets are divided. There are many circumstances of the marriage that are taken into account, as set out above. The Court will consider all details of the marriage and the parties have to give full financial disclosure so that the Judge hearing the matter can see clearly what the parties’ situations are.

The Courts can have particular focus on the headings below should they be applicable to your situation. It is important you understand these headings upon taking advice should you wish to negotiate for yourself.

  1. Needs

The foremost consideration of the Court, if the parties have children and the welfare of those children. The Court need to know who the primary carer of the children is. Particular consideration is given to the children of the family including the financial needs of the children, any mental or physical disabilities and the expectations during the marriage as to how the children would be educated.

The Court will give consideration to the reasonable housing needs of the parties and those of their children. It may be that if the house is to be sold the party who is the primary carer of the children needs a greater share of the assets or the property to house the children.

If you do not have children, then the Court will consider if one of the parties is more vulnerable than the other and would this vulnerability require a departure from equality or simply speaking do they need more of the assets.

The Court will also consider the parties’ ages, earning capacity, income needs and employability.

  1. Conduct

The parties’ conduct will be considered by the Courts, but this is an area where parties often focus too much attention and it is not often relevant to the Court.

For conduct to be considered and to alter the financial settlement from equality the conduct you wish to rely on has to be severe.  Sadly, parties are often upset to find that adultery does not constitute conduct. This is further amplified now with the change in divorce proceedings.

Conduct will usually only be considered by the Court if it would be inequitable for the Court to disregard it.

  1. Compensation

There could possibly be a shift from equality should it be demonstrated that a party can effectively argue that they require a greater settlement by way of spousal maintenance. Should a standard of living have been relied upon during the marriage then a Spouse may seek a reflection that that standard be continued for a period of time and adjustment.

  1. Contribution

What parties contributed during the marriage can be another common consideration which could alter the way matrimonial assets are divided. If it is a long marriage say over 20 years, then it is less likely that a party could rely on this, however, should the marriage be short and it can be shown that one party for example injected a much larger asset into the marriage then they may be able to successfully seek to persuade the Court why they should seek more than half of that asset or matrimonial assets. This argument is commonly used if one Spouse purchased the matrimonial home, and the other did not contribute.

How can Andrew Isaacs Law help me?

For much more detailed information on the above and tailored advice on your situation, Andrew Isaacs Law offers fixed fee appointments. There is no obligation for you to instruct following one of our fixed fee appointments, but you will be armed with detailed information, understanding and know what options you have going forward. You may feel the confidence to deal with your own negotiations or you may wish to entrust our knowledgeable team of lawyers to navigate you through your financial separation, be it by way of agreement, Consent Order or Court Order.

Give our dedicated team a call today on 01302 349 480.

Roxanne Woolliams – Family Solicitor

20.07.22

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