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Finances on Divorce
If you separate and/or divorce, you will need to unravel your financial affairs, which in some cases can have been tied together for many years.
There are many “urban myths” around finances and divorce, and the reality is that each case is judged on its own facts. The Court will want to see that each spouse can meet their ‘needs’ going forwards and that dependent children are provided for financially. This can be a challenge where finances are limited and legally complicated where finances are more abundant.
Our Family and Matrimonial team can advise you specifically what you are entitled to and take a fair and robust approach to ensuring the right outcome for you. We can help you reach an agreement with your spouse and if that is not possible, we can represent you in court proceedings to secure the necessary financial order.
We can refer you to a mediator if you and your spouse feel able to negotiate direct with the help of a mediator, to agree financial settlement. We make the referral for you and we advise you throughout the mediation process to ensure you get the outcome that is right for you. The mediator will assess if the case is suitable for mediation. If it is, the mediator will set up a joint meeting. The mediator will then assist you and your spouse in trying to reach a mutual settlement. This takes work and compromise on both sides and can be really difficult for both. However, it is worth it. It takes far less time, and costs far less money. When Mediation has concluded we will draft all the necessary legal Orders to make the mediated agreement legally binding and enforceable.
Often couples find it very difficult to negotiate between themselves. This is understandable, given the emotional impact of the discussions. Solicitors, contrary to popular belief, do their best to try and assist clients in resolving disputes on an amicable basis. At Ridley and Hall our legal advisors are Resolution members, which means that they sign up to a code of conduct which means that they do their utmost to try and resolve relationship disputes in a constructive way. We will offer a clear, fair and robust strategy with the primary focus being to meet your needs and the needs of your family. You can find out more about the Resolution code of conduct at http://www.resolution.org.uk/code/
We can help you to exchange financial disclosure, and then negotiate settlement on your behalf. This can be done with your spouse and his or her representative in correspondence or face to face in round table meetings.
Family Arbitration is a relatively new process, and involves you and your spouse paying an arbitrator to make decisions about finances when you cannot agree. The advantage is that you are paying for someone to judge your case, without having to jump through the hoops that the Court process involves. This can mean that your case is resolved more quickly and more cheaply than litigating through the courts. Both of you have to sign an agreement to say that you will be bound by the arbitrator’s decision, whether that is for or against you, and Courts do uphold arbitrators’ decisions. We will represent you in the Arbitration process in the same that we would in a Court process.
Where you and your spouse are unable to reach an agreement about how to separate finances then a Court application has to be made. We will prepare all the necessary applications and evidence required for this process.
Once issued, the Court will allot a hearing within 3 months. During that time you and your spouse will have to prepare and file with the Court a Form E, which is a financial statement. We will do this for you.
The first hearing is generally a directions appointment, where the Court make directions about how the case will be dealt with. We would represent you at this hearing and ensure that the Court are made aware of all the issues in your case and we will use our best endeavours to ensure all necessary Court directions are given for your case to be heard as swiftly as possible.
The next court hearing is usually a Financial Dispute Resolution Appointment, where the Judge hears from both sides about what they are seeking, and gives an indication of what they would do at a final hearing. We would represent you at this hearing and present your case for you.
If your case has not settled after the Financial Dispute Resolution Hearing, then your case will be listed for a final hearing, where enough court time is set aside to enable both you and your spouse to give your evidence, and for the Judge to make a decision. We would take you and your witnesses through your evidence and we will cross examine your spouse and his or her witnesses on your behalf.
Generally the Court process takes about 1 year from the start to the final hearing, although it can be slower or quicker, depending upon the assets involved, and whether there is a complicated issue of law.
Costs vary significantly, depending upon where you live, what assets you have, and how co-operative the other person is. We will give you a costs estimate at the outset of your case and review it with you throughout the case. We can offer private funding terms by agreement and we can work with a litigation funding company if you need to take a loan agreement to fund your case in advance of you receiving your cash settlement at the end.
What factors will the Court take into account?
Our job as your legal representative is to ensure that the Court takes ALL the appropriate factors into account when deciding the outcome of your case. This can be easy and obvious in some instances and evidentially quite challenging in others. One factor can have a direct impact on another and as the Court will consider your financial situation in the round it is important to address each issue carefully and apply a robust strategy to achieve a fair outcome overall.
Under s.25 Matrimonial Causes Act 1973, the Court has to take into account the following:-
(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage 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 in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b)the financial needs, obligations and responsibilities which each of the parties to the marriage 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;
(d)the age of each party to the marriage and the duration of the marriage;
(e)any physical or mental disability of either of the parties to the marriage;
(f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h)in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
In most cases the Court are looking predominantly at what most people need and they work back from there. It is our job as your legal representatives to ensure that your case is presented in the right way so as to ensure you secure the right outcome.