One of the most daunting aspects of a separation is how your finances are going to be dealt with and what financial arrangements are going to be in place for your future. Our team of experts has extensive experience of advising clients with their finances on divorce or dissolution including negotiating financial settlements and representing in financial remedy proceedings at court.
WHY DEAL WITH YOUR FINANCES WHEN GETTING DIVORCED OR DISSOLVING YOUR CIVIL PARTNERSHIP?
The term ‘finances’ relates to all of your assets, liabilities, income and pensions and can even include such things as inheritance.
It is very important to reach agreement as to what should happen with yours and your partners’ finances when you separate and going forwards. If you do not do this, each of your claims against each other, which exist by virtue of the fact that you are or were married or in a civil partnership, remain open. This means that even if you are legally divorced or your civil partnership has been dissolved, if you have not entered into an agreement with regards to what should happen with your finances, there is a risk that claims could be brought against your from your ex-spouse/partner at a later date.
Mediation can be a suitable and cost effective way to resolve a dispute away from court and involves both parties sitting down with an independent mediator and trying to resolve the dispute between them with the mediator’s assistance.
Unfortunately, mediation is not suited to all cases and if the other party refuses to attend, or you are unable to reach agreement, then you may decide that seeking assistance from the court to resolve matters is a better option.
Anyone who wants to issue an application at court must first attend a Mediation Information and Assessment Meeting (MIAM) in any event unless, in a small number of cases, they are exempt from doing so.
NEGOTIATING A FINANCIAL SETTLEMENT
As members of Resolution, we will aim to negotiate with your spouse/partner in order to reach an agreement amicably.
Both parties will be required to complete financial disclosure by completion of a Form E. Once complete, this provides details of all of your finances. This enables us to advise you as to what a fair and reasonable outcome would be and assist in negotiating a settlement with your spouse/partner.
Although it is sometimes possible to negotiate a financial settlement without issuing court proceedings it may be necessary to issue proceedings in order to prevent things from dragging on and to help get matters resolved as soon as possible.
ISSUING COURT PROCEEDINGS
Court proceedings can be issued at any time once your divorce or dissolution petition has been filed at court by completion of and filing a Form A.
The court will then list a First Directions Appointment (FDA) which will usually take place approximately 12-16 weeks after the Form A has been issued.
FIRST DIRECTIONS APPOINTMENT (FDA)
At the FDA hearing a Judge will firstly consider whether financial disclosure is sufficient enough for that hearing to in fact be used as a Financial Dispute Resolution Appointment (FDR) (see below).
If the Judge does not think that it is, then they will set down a timetable for financial disclosure to take place. This would include such directions as when both parties Form E’s should be completed by, whether any valuations need to be obtained and whether there are any interim issues to consider. A date for the FDR hearing will also be listed.
FINANCIAL DISPUTE RESOLUTION APPOINTMENT (FDR)
Both parties must attend this hearing but neither will have to give evidence.
The purpose of this hearing is to try and encourage parties to negotiate and reach a settlement. The Judge will review the papers in the case and will give an indication as to, if it were a Final Hearing, the types of orders they would make. Both parties are expected to take on board the Judge’s comments and to try and reach an agreement.
If an agreement is reached then a Consent Order will be drawn up and the Judge is able to seal it, resolving your finances on divorce. If you are unable to reach an agreement, the Judge will provide further directions and set a date for the Final Hearing.
The types of directions a Judge will make are for updating financial disclosure to be provided by both parties, for any further valuations to be obtained and for parties to file statements at court which will form the basis of their evidence for the Final Hearing.
It is important to note that everything that takes place at the FDR hearing is ‘without prejudice’. This means that anything which is discussed and any offers made are not to be referred to at the Final Hearing. The Judge at the FDR hearing is also exempt from being the Judge at the Final Hearing. This is so that parties are able to effectively lay all their cards on the table in an attempt to settle, but if settlement is not possible, they will not later be penalised for this at a Final Hearing.
Both parties are required to attend a Final Hearing and be prepared to give oral evidence if required. They will also be cross examined by the other side.
The Judge at the Final Hearing will listed to both parties arguments and hear each of their evidence. If necessary the Judge will also hear from any experts in the case or any other relevant witnesses who have been called.
The Judge will then consider all of the evidence they have heard and make a final decision as to the finances on divorce/dissolution.
It is also possible for a Judge to make a costs order at the Final Hearing if one parties conduct has been particularly bad throughout proceedings. This is relatively rare though and it is only very serious conduct that is taken into account.
WHAT WILL THE COURT CONSIDER?
The Court will always give top priority to the welfare of any children under the age of 18 years.
There is a statutory checklist of matters which then have to be considered set out in s25 of the Matrimonial Causes Act 1973. These are as follows:
- The income and earning capacity of each party, the property they own and other financial resources they each have.
- Each parties financial needs, obligations and liabilities.
- The standard of living enjoyed during the marriage/civil partnership.
- The length of the marriage/civil partnership and the ages of the parties.
- Any mental or physical disability that either party suffers from.
- Contributions made by each of the parties to the marriage/civil partnership, both financially and otherwise.
- Any behaviour of either party which is so serious that it cannot be ignored by the judge.
- The value of any benefit which either of the parties will lose the opportunity of acquiring as a result of divorce/dissolution, such as pension and insurance benefits.
The court has a wide discretion as to which of these factors it will give most priority.
If an urgent matter arises during the proceedings it is possible to request the court list an urgent interim hearing to deal with a specific issue, such as spousal maintenance up until proceedings are complete.