In England and Wales, the financial matters on divorce are separate from the Divorce application itself and can run parallel to the divorce. These matters would include dealing with the separation of the assets on divorce, maintenance and pension provisions.
It is advisable when dealing with the divorce to also ensure that you obtain a final court order that is approved by the Judge in relation to the financial matters on divorce whether you have managed to reach agreements with your spouse about these matters direct, through Mediation or with the court’s assistance. If any agreements you reach with your spouse are not set out in a court order that is approved by the Judge, then they will not be enforceable in England and Wales and you could have problems.
The financial matters on divorce are also known as financial remedies and were previously referred to as ancillary relief proceedings.
Our advice and assistance can include:
- Mediation- How Mediation may be able to assist you;
- Separation of Assets– How you can obtain a separation of your property or assets on divorce or separation;
- Protection – How to protect your position;
- Disposal or dissipation of assets – What urgent steps can be taken to prevent assets being dissipated or disposed of before your application for a financial provision is considered by the court;
- Maintenance- Maintenance for a spouse or child;
- Pensions – Pension provisions on divorce including pension sharing orders;
- Which country– International considerations and where it would be best for you to issue the court proceedings; sometimes referred to as ‘forum shopping’
- Financial disclosure– Discussing with you the full material disclosure obligations of the parties; what information is required before a financial order can be agreed and what the Judge will look at when deciding what financial provisions to make on divorce;
- Negotiations – Negotiating a settlement for you and preparing the documentation for you, including where you have reached an agreement direct with your spouse;
- Document Preparation– Preparing all the court documentation for you and discussing the best options for you and your family.
- Attendance at court– Attending court with counsel and you to fully present your position and to seek the best settlement for you and your family.
Judge’s considerations when considering the financial matters on divorce.
A Judge will consider the welfare and needs of any children of the family under the age of 18 and factors in section 25 Matrimonial Causes Act 1973 (often referred to as the section 25 factors), in order to decide what order to make when considering the financial matters on divorce. For Civil Partnerships the similar provision is found in Schedule 5 to the Civil Partnership Act in relation to Civil Partnerships.
The section 25 factors and considerations that will be made by the Judge include the following:
- The parties resources (income and capital)
- The length of the marriage
- Ages of the parties
- Income earning capacity of the parties
- The financial needs of the parties
- The welfare and any illness/ disabilities of the parties that could affect future earning capacity
Other considerations can also be taken into account as relevant factors. These can include for example, where the financial conduct of one party has affected the parties’ family finances, such as if one spouse was a gambler or if one spouse has given up a career to look after the children or a spouses’ contributions and assets brought into the marriage. A validly executed Prenuptial or Qualifying Nuptial Agreement will also be considered.
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For further information and free from any obligation, please contact our family law specialists in the Family Department on 0207 332 2222 or email our family team.