Family Solicitors specialising in divorce and financial arrangements between you and your spouse/civil partner.

Basis

With regard to divorce and financial arrangements between you and your spouse/civil partner, the court takes various matters into account when considering what order should be made. The court considers all the circumstances of the case, gives first consideration to the welfare of any children of the family under the age of 18 and, in particular, the court has regard to the following matters:

(a) The income, earning capacity, property and other financial resources which each spouse/civil partner has or is likely to have in the foreseeable future including, in the case of earning capacity, any increase in that capacity which it would be, in the opinion of the court, reasonable to expect a person to take steps to acquire.

(b) The financial needs, obligations and responsibilities which each spouse/civil partner has or is likely to have in the foreseeable future.

(c) The standard of living enjoyed by the family before the breakdown of the marriage/civil partnership.

(d) The ages of each party and the duration of the marriage.

(e) Any physical or mental disability of each party.

(f) The contributions which each spouse/civil partner has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.

(g) The conduct of each spouse/civil partner, if that conduct is such that it would in the opinion of the Court be inequitable to disregard.

(h) The value to each spouse/civil partner of any benefit which one spouse/civil partner because of the divorce/dissolution will lose the chance of acquiring (most usually pension provision).

The aim of the court is to achieve fairness. Following a landmark decision called White v White in 2000, the court has to consider an equal division of assets built up during the marriage, unless the marriage/civil partnership was of short duration, or the assets are insufficient to satisfy capital needs in particular rehousing. However, often a key and decisive factor is the reasonable needs (especially housing needs) of yourself and your spouse/civil partner, which often overrides any possibility of an equal division of assets.

In most cases, the courts no longer have power to make orders for child maintenance except by agreement; an application to the Child Maintenance Service has to be made for child maintenance to be assessed.

Both you and your spouse/civil partner have an absolute duty to each other and to the court to disclose fully your financial position (and any significant changes during the case) so that a proper financial arrangement can be made. That is an on-going duty which continues until an order is approved or made by the court.

Procedure

Without obtaining an order of the court or a consent order approved by the court in financial matters it will be possible for your spouse/civil partner or ex-spouse/ex-civil partner to make a claim in the future. For example, if you receive an inheritance or win the lottery your ex might be able to claim a share.

The procedures for obtaining an order of the court or consent order are complicated and need explanation which is individual to the person concerned. Formal legal proceedings may be required where there is a fundamental disagreement or the matter may be suitable for a negotiated settlement where matters are largely agreed.

There is a legal duty imposed on all persons involved in financial proceedings following divorce or dissolution of a civil partnership to provide full and frank disclosure of their financial circumstances.

An application to the court to commence legal proceedings for a financial claim or approval of a consent order (negotiated settlement) cannot be made until after the divorce or dissolution petition has been filed with the court. Any order of the court cannot be made until after decree nisi or the conditional order has been granted and will not take effect until after decree absolute or the final dissolution order is made.

We can help by explaining the procedures involved and the circumstances that the court may take into consideration in your individual circumstances. We can negotiate with the other people involved and if necessary, prepare the case for presentation to the court.

It is essential in any financial claim that you obtain the advice of an experienced and specialist solicitor who can then achieve a fair settlement in your circumstances.