Get clear and practical advice on resolving your finances on divorce, dissolution or separation
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.
Financial Settlements in England and Wales
Process
There are many different approaches to resolving your finances on divorce.
Whichever is adopted, full and frank disclosure of worldwide 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
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.
Collaborative law
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
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.
Court proceedings
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.
Financial Remedy applications in England and Wales
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.
FDA (First Directions 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.
FDR (Financial Dispute Resolution)
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.
Final hearing
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.
Appeal
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.
Remarriage trap
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.
Financial disclosure
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.
Valuations and expert evidence
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 basis for all financial orders - S25 factors
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:
The income and earning capacity of both parties now and in the foreseeable future
The financial needs, obligations and responsibilities of both parties now and in the foreseeable future
The standard of living prior to marriage breakdown
The age of the parties and duration of the marriage
Any mental or physical disability of either of the parties
The contributions of the parties to the welfare of the family
The conduct of the parties (in limited circumstances)
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.
Orders of the court
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.
Worldwide freezing injunctions and orders
In certain circumstances, it may be necessary 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.
Consent order
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.
Costs
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.
Legal services orders/funding options
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.
Child maintenance
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 or if the paying party lives overseas. 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.
Enforcement of court orders
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.
Pre or post marital agreements
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.
Other legal jurisdictions
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.
Specialist advice is needed if there are international connections or assets in your case.
Financial Settlements in Scotland
Separation agreements
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
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.
Financial orders in a Scottish divorce
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 in Scotland
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.
A court can make an order for maintenance pending suit/interim maintenance and will make an order based on an assessment of your immediate needs and requirements, and the ability of both you and your spouse to meet those costs.
It is important to act quickly to see if a negotiated outcome can be reached, or to commence a court action for an interim order.
Even if you think you have very little, or nothing, to resolve from a financial perspective, we always advise you to obtain a consent order to reflect the agreement you have reached – even if that is to leave things as they are.
Likewise, if you have reached a full, amicable agreement between yourselves, without the need of solicitors.
On marriage and divorce, the law provides both parties with a wide range of obligations and financial responsibilities towards their spouse, or former spouse. Unless those obligations are dismissed, and so brought to an end, by a court order, they are still potentially available for the other party to make a claim against in the future.
If you inherited a significant sum, or won the lottery for example, or if circumstances change such that you or your spouse need the support of the other, you could be at risk of a claim, even if a divorce was finalised several years ago.
As such, it is important to obtain a properly drafted court order to dismiss the risk of a former spouse making a claim against you in the future.
If you finalise your divorce with the Decree Absolute without a final financial order, it can limit, even prevent, your ability to make a financial claim against your former spouse.
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 spouse.
It is very important to take legal advice if you are thinking of remarrying in circumstances where there is no final financial order, or application, in place.
Remarriage also means that you cannot claim spousal maintenance from your former spouse.
You should contact the police who have a range of protective powers.
It is also possible to apply to the Family Court for protective orders, such as a non molestation order and an occupation order, which can regulate the occupation of a property on a temporary basis pending a financial settlement being reached.
A pension sharing order is when a proportion of one party's pension fund is 'carved out' of their pension, and invested in a new pension fund held by the other party as a 'pension credit'. It enables parties to share pensions on divorce.
To enable you to assess a fair division of a pension, or various pension funds, including occupational and personal schemes which have different methods of calculating fund values and benefits, it is often necessary to obtain expert advice from an actuary who can advise on appropriate sharing options.
Before you can assess the parameters of a financial settlement, you need to know what there is. There is an ongoing duty of financial disclosure, which continues until a settlement is reached.
If your former spouse will not voluntarily provide details of their finances, you can apply to the court for a financial remedy order. As part of that process, the court will order both parties to disclose their assets in a court form called a form E.
If your former partner does not complete a form E properly, or at all, despite the court order, the judge can make further orders for further disclosure with penalties attached if there is further non-compliance.
In extreme cases, where a party refuses to co-operate with orders made by a court, enforcement proceedings, including orders for imprisonment, can be brought. The judge can make a final order based on adverse inferences, due to the lack of disclosure given. Costs orders may also be made against your former partner in that situation.
You must seek urgent advice, as in cases where you become aware of a risk that assets might be disposed of, with the intention of defeating, and so reducing, your financial claims, the court can make a 'freezing injunction' against assets held in the UK and worldwide, with a view to preventing that transaction from taking place.
It is essential to act urgently, and steps may need to be taken in other jurisdictions urgently too, to protect assets held abroad.
In some circumstances, it is possible to set aside a transaction that has already taken place.
A prenuptial agreement is not automatically binding on the Family Court but is treated as an important aspect of the case to be considered when weighing up the s25 factors. In many situations, it can carry decisive weight provided that certain criteria and safeguards are met, that it is not unfair, and that it meets the needs of the other party.
This is only a requirement in England and Wales, not Scotland.
Before a court application can be made, save in urgent situations, you must attend a Mediation Information and Assessment Meeting, a 'MIAM'. This is to explore first whether can assist in your circumstances, and if appropriate, the parties may be prepared to attend mediation to try to reach an amicable agreement.
It is possible to enter into a contract, called a separation agreement, which sets out your financial settlement and is recorded in a deed.
Although it may seek to bind both parties, a separation deed cannot bind the Family Court which retains a wide discretion, applying s25, to reach a fair and reasonable settlement. In some circumstances, if there has been a change of circumstances which renders the agreement unfair or unreasonable, a separation agreement may be departed from, and as such they do not provide the same certainty of outcome that many parties seek and that a court order would.
You should always keep a Will under review, particularly if there is a change of circumstance, and particularly a change as significant as a divorce which affects inheritance. If there is no valid Will on death, the Intestacy Rules will apply.
You should consider how you would want to leave your estate both before a settlement is reached, and subsequently revisit that once a divorce and financial settlement has been finalised.
You may need to consider altering ownership of joint property.
In Scotland you have occupancy rights which entitle you to remain in occupation of the matrimonial home whether it is a tenancy or owned property. It doesn't matter that the property is owned in your husband's sole name.
In addition, if your husband is likely to behave in any way which would be injurious to your physical or mental health or that of your children you would be entitled to apply to the court for an exclusion order to exclude him from the house meantime while you're sorting out the divorce.
Unfortunately, no. There are specific rules between Scotland and England which govern the jurisdiction of the court in a divorce action. Ordinarily, the court for the place where you last habitually resided as man and wife will have jurisdiction to consider the divorce which in this case would be Scotland.
The court will take into account the resources held worldwide.
It can make orders over overseas assets, but it is essential for advice to be taken in the jurisdiction where the asset is located if there is a risk that the court order will not be complied with.
If enforcement proceedings are necessary, they may need to take place abroad, and it is essential to take advice about the prospects of recovering and securing that asset if an order were to be breached, before a financial order is made.
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 between the two jurisdictions, and we can advise you regarding this.
It is likely that the CMS will not apply in your case, and that an order may need to be made for child support by the court as part of a divorce settlement (or by Schedule 1 Children Act 1989 if you are unmarried).
If you subsequently need to seek enforcement of an order made in respect of maintenance paid by a person living abroad, it will be regulated by the reciprocal arrangements in place between the two jurisdictions, and we can advise you regarding this.
