When dealing with financial matters both you and your ex partner are required to give full and frank financial disclosure. The duty of disclosure is an ongoing obligation and includes the duty to show any material changes after first disclosure has been given.
The Court can make a range of Orders for lump sum payments, transfer of property or maintenance and pension sharing. The financial arrangements can be settled on a “clean break basis”, which means a lump sum payment and/or property transfer and/or pension share but no ongoing spousal maintenance payments.
The Court has a wide discretion in applying the law and it can be better to agree your own financial arrangements and avoid the delay and uncertainty of a Court hearing.
Many people are able to agree on a financial settlement upon having taken independent legal advice on what may be a fair division of the matrimonial assets.
Mediation can help separating couples reach a financial settlement, however you will need a solicitor to advise you on the implications of any agreements and to convert the agreements into a legally binding and enforceable Court Order.
The Court Process:
On April 6th 2011 a new family law pre-application protocol was issued by the Ministry of Justice directing all potential applicants for a Court Order in relevant family proceedings to have considered mediation as an option to resolve their disputes. This requires you and your ex partner to attend a Mediation Information and Assessment Meeting – known as a ‘MIAM’ appointment with a qualified mediator, before filing your application with the Court. There are exceptions where child protections issues are raised or on going domestic violence concerns.
To issue an application for Financial Remedies, a document known as a ‘Form A’ must be filed with the Court. A fee is payable, now in the sum of £240.00 Upon the Court issuing the application you will receive a timetable for your case making directions for exchange of financial disclosure in a format known as ‘Form E’ and the Court will fix a date for the First Appointment.
At the First Appointment the District Judge will identify the issues between you and your ex partner and make relevant directions, such as formal valuations of the former family home is to be obtained within a specified time.
The court will then list the matter for what is known as a ‘Financial Dispute Resolution’ (FDR) hearing.
Both you and your ex partner will be required to attend Court on this date together with your Solicitor/Barrister in the hope that a financial settlement can be negotiated with the help of the District Judge.
The Judge will give guidance to assist you in reaching an agreement, often indicating what he/she thinks would be a reasonable settlement in the circumstances of your particular case. If it not possible to settle, there will be a Final Hearing listed at a later date to be heard before an independent District Judge.
Any time before the Final Hearing it is possible to reach an agreement and to send a draft of the proposed Order, called a “Consent Order” to the District Judge for his/her approval.
The Matrimonial Causes Act 1973 and Civil Partnership Act 2004 sets out the factors to be considered in deciding what is fair.
The Factors To Be Considered By The Court Are As Follows:
• Welfare of any children of the family
• Income, earning capacity, property and resources of each party now and in the foreseeable future
• Financial needs, obligations and responsibilities of each person now and in the foreseeable future
• Standard of living enjoyed by the family before the breakdown of the marriage or partnership
• Age of each person and the duration of the marriage or partnership
• Contribution made by each person to the welfare of the family, including looking after the home and bringing up children
• Conduct of each person, but only if it is so bad that it would be unfair to disregard it
• Physical or mental disability
• Any benefit lost because of the divorce or dissolution (in practise this is restricted to loss of pension benefits)