Our team of specialist family solicitors can provide insightful, jargon-free advice on the financial circumstances of your divorce or dissolution and how to achieve the best settlement for you.
Whether your only asset is the equity in your home, or you have a complex portfolio of trusts and investments, our family law experts have the in-depth expertise to guide you through the process, including issues around:
You may have already reached an outline settlement with your spouse, or you may want our initial opinion before starting negotiations, perhaps handling the negotiations yourself.
Some clients prefer to take a collaborative or mediated approach, reaching agreement through transparent negotiations, while others are looking for legal representation to advise and guide them and protect their interests at court hearings or injunction applications.
If you're already divorced, we can advise you on the possibility of reviewing your maintenance payments. And if you divorced or separated overseas, we can explain how it affects your situation in the UK.
Whatever your circumstances, we use our experience to find the most cost-effective solution for achieving the outcome you want, while our level of involvement is flexible to suit your specific needs.
If your case requires additional expert advice, such as a barrister, forensic accountant, surveyor, actuary or other specialist, we have an extensive network of tried and tested contacts to call on.
In Scotland, there is a different set of legislative acts governing divorce and financial settlements. Please see our specific sections on financial settlements in Scotland if you believe your case may require to be dealt with under Scottish law. If you are in any doubt, we have advisors in both jurisdictions who can assist.
There are many different approaches to resolving your finances on divorce.
Whichever is adopted, full and frank disclosure of assets, income and material information is required. In most circumstances, a valuation of assets will be also be needed.
All agreements should be embodied in a final order approved by the court, ideally by consent.
Which process you chose to adopt to finalise matters will depend on the issues, as well as what best suits you and your circumstances and what may be agreed with your former partner.
The options include negotiations through solicitors, round table meetings, mediation, collaborative law, arbitration, court proceedings, private FDRs or a combination of two or more of those processes.
Mediation involves the joint appointment of an independent mediator or mediators who will meet with you both on one or more occasions and seek to facilitate discussions between you and your partner to help you to agree settlement terms. Those terms should then be embodied in a consent order for approval at court.
Mediation can take a number of different forms and may take place with or without your solicitor present.
In the collaborative process, both parties and their solicitors meet in a series of roundtable meetings which are used to address disclosure and valuation of assets and ultimately to reach agreement as to final settlement terms.
A participation agreement which commits all parties to the collaborative process is usually signed, with an agreement not to bring court proceedings. If the collaborative process breaks down, each party must find a new solicitor to represent them if they wish to go to court. If agreement is reached, it is embodied in a consent order for approval at court.
Arbitration is an alternative to the court process in which a jointly chosen arbitrator is chosen to act in place of a judge. The parties choose who they want to make a decision about their case if they cannot reach agreement and can also agree to a process which is adapted to the specific needs and circumstances of their case, including timing. It is effectively a private, and privately funded, court.
The final decision of the arbitrator is binding although it must be converted into an order by the Family Court.
There may be a number of reasons why a court application to resolve financial issues is necessary or appropriate which will depend on the particular circumstances of your case.
A financial remedy application is commenced by an application in form A after a MIAMs appointment has taken place.
The court fixes a timetable which provides for the exchange of disclosure by forms E and the preparation of other documentation to be prepared in readiness for the first court appointment. The court will order the date for the first appointment.
You must attend the first court hearing, a First Directions Appointment (FDA). You will normally be represented by your solicitor and/or barrister.
By the time of the FDA hearing, both you and your partner should have exchanged forms E. The court will decide what further information, documents or valuations are necessary to assist the court in making a final determination and make orders for directions. The judge will usually list your case to a further hearing which is known as an FDR.
You must attend the FDR and will usually be represented by your solicitor and/or barrister. This is a without prejudice hearing and the judge at the final hearing cannot know what was discussed. This is used as a negotiation hearing.
The judge cannot impose a decision on the parties but will encourage them to reach agreement.
At any point in the court process agreement can be reached and an order made by consent. This brings the proceedings to an end.
If there is no agreement, there will be a final hearing at which both parties and any other experts or witnesses attend and full evidence will be heard by the judge. The judge will then make a decision and final order which will be binding upon the parties.
The circumstances in which an appeal against a final order is possible are very limited and will depend on the particular circumstances of the case.
It is possible, although not advisable, to finalise your divorce with the decree absolute without a final financial order. You are then free to remarry.
However, if you remarry without first having made an application for financial remedy, you will not subsequently be able to pursue a financial remedy application against your former partner. It is very important to take legal advice if you are thinking of remarrying in circumstances where there is no final financial order in place.
There is a duty of full and frank disclosure on both parties to the marriage or civil partnership. This is necessary so that there is a full picture of all assets, income, pensions and liabilities, worldwide, in order to enable the parties to make informed decisions as to appropriate settlement terms. If full disclosure is not forthcoming, any final financial order may subsequently be set aside.
Usually, disclosure is dealt with by completing forms E and supporting documentation, either voluntarily or in a court process, and exchanging them with your former partner.
The assets of the marriage must be valued to enable settlement terms to be considered. For many assets that will be the face value. Those assets potentially requiring formal valuation by a third party expert will include all property (on and off shore), including the family home, company interests and assets, trust interests and pensions.
It is possible to agree valuations of some assets, particularly where there is readily available comparable evidence. Others, such as more complex company or partnership structures, will require the input of experts. These may be undertaken on a jointly instructed basis.
The types of expert appointed to assist in financial cases vary depending on the evidence requirements of the case but may include accountants, surveyors and pension actuaries.
The judge at any final hearing has a wide discretion in deciding how to distribute the assets and income of a marriage. In applying that discretion, he or she will consider what are known as the 25 factors (s25 Matrimonial Causes Act 1973).
In short form summary these include:
First consideration must be given to the welfare of any child under the age of 18.
Most cases are not decided at a final hearing by a judge. However, the statutory guidelines still underpin and inform any advice on what amounts to appropriate settlement terms when you are negotiating an agreement.
The court has power to make a wide range of orders to provide financially for both parties to the marriage including for lump sums, orders for sale or transfer of property of all types including shares, pension sharing orders and orders for spousal maintenance, both during the marriage or civil partnership and after it.
The court can also vary nuptial settlements or trusts, transfer company shares and make orders in respect of overseas assets.
In certain circumstances, it may be necessary to for the court to make orders freezing the assets of one party to protect the party making a claim and prevent assets being transferred out of the jurisdiction and/or beyond the reach of the court.
It may be necessary to act urgently, and we can advise in those situations.
Most people reach agreement on their financial settlement terms through one of the above processes and that agreement is embodied in a document known as a consent order.
For this to be a final order that is binding on all parties it must be approved by a judge at court. This is generally a paper exercise, although the judge needs to be satisfied that a fair and reasonable settlement has been reached.
Ordinarily, each party pays their own costs of reaching a final, financial order, whether that is by consent or within court proceedings. There are exceptions which are case-specific and on which specific advice would be required.
It is possible in certain limited circumstances to obtain an order for assistance with your legal costs against your partner. We can advise you if this is an option.
It is also possible to obtain litigation funding to assist with your costs from specialist litigation loan providers.
The jurisdiction for dealing with child maintenance generally lies with the Child Support Agency (CSA). Agreements will normally be reached by reference to the CSA formula.
There are some exceptions including where the paying party is a high earner. Specific advice will be required depending on your particular circumstances.
The amount of child maintenance to be paid will be one of the factors considered when deciding on financial settlement terms.
If the other party fails to comply with the terms of a court order or maintenance obligation, you will need to consider options to enforce payment and implement the terms of the order. We will explore those options with you. It can be important to act quickly and decisively.
Enforcement of orders made in respect of overseas assets, or maintenance paid by a person living abroad, would depend on the reciprocal arrangements in place with the jurisdiction, and we can advise you regarding this.
Giving thought to what might happen to your financial assets at the outset of a relationship is both a sensible and pragmatic way of protecting yourself for the future. This may be where there is an imbalance of assets, or you have monies you would wish to ring-fence, perhaps from an inheritance or a previous relationship.
Should things go wrong, you will have a clear idea of where you stand and there is a documented account of your intentions at the time you became involved.
Financial assets and issues may arise in other legal jurisdictions, and it is vital to seek expert help to ascertain the best way forward for you.
It might be that there is more than one possible jurisdiction for a divorce. In many jurisdictions, the financial remedies on divorce will be linked to where the divorce takes place. The outcome for a financial settlement might be very different in one jurisdiction, rather than another, and urgent advice may be required.
Some aspects of your financial settlement may currently be regulated by EU law. Following Brexit, transitional arrangements are currently in place, and we can advise you on the latest developments and implications for your case.
The majority of cases involving financial matters in Scotland are resolved by way of a separation agreement before the parties, who then apply for a divorce.
If the financial issues have been resolved this can mean the divorce process itself is relatively straightforward and often undefended. In Scotland, such separation agreements are recognised by the court and the Scottish courts do not need to scrutinise or rubber stamp such agreements. In Scotland, the parties to a divorce have a right to contract into an agreement provided they satisfy the normal capacity rules.
Matrimonial property in Scotland is any property that is acquired during the marriage up to the date of the separation. The exception to that is a home bought for use as a family home before the marriage.
Inherited assets and gifted assets are excluded from the matrimonial 'pot'.
In Scotland, the assets are valued usually at the date of separation and not the date of divorce, with the exception of jointly owned assets such as a matrimonial home. This can have a significant impact for parties particularly as many assets such as investments and business assets can appreciate and depreciate in value following the separation and before any divorce is included.
The court can grant various financial orders including a capital sum; transfer or sale of property; pension share; spousal maintenance during the marriage (aliment); spousal maintenance after the divorce (known as periodical allowance); occupancy rights; exclusion orders, protective orders; transfer of tenancy; and interim orders such as to pay ongoing bills while the action is pending.
Spousal maintenance after divorce (known as periodical allowance in Scotland) is usually restricted to no more than three years after divorce except where there is likely to be severe financial hardship.
Ready for the next step? Speak to us now for clear and practical advice on your financial situation.
Book now
Ready for the next step? Speak to us now for clear and practical advice on your financial situation.
Book now
