The resolution of financial matters is governed by the Matrimonial Causes Act 1973. This Act sets out the factors that are to be taken into account when considering what is fair and reasonable. These factors are always taken into account whether financial issues are resolved by agreement, with the assistance of family mediation or ultimately decided by the Court

There are different routes available to you, when trying to resolve financial matters:

1.Agreement
Parties can have discussions between themselves and come to an agreement as to how assets are to be divided.

2.Negotiation
Through solicitors. An agreement is reached between parties, with this assistance of solicitors. Negotiations usually begin after full and frank financial disclosure has been exchanged between parties, allowing for us to provide specific and informed advice.

3.Mediation.
We offer a mediation service. This a process whereby a mediator will work with both parties to help them come to an agreement as to how assets can be divided. If we are acting for you as your solicitor, our mediation service is not available, however, you can still attend mediation and we can assist (where necessary) in negotiations and advise you on the implications of any potential agreement. Once an agreement is reached in this way we will then convert the agreement into an order that is recognised and enforceable by the Court. For more information on mediation and how we can assist, please click here.

4. Court proceedings
This course should only be taken when all other efforts to resolve matters have been exhausted. Court proceedings can be lengthy, time consuming, expensive and often highly emotional. In some cases however this is the only option available if a resolution is to be reached.

As every case is different, the law in this area is flexible. The Court’s aim is to achieve fairness based on the circumstances of each individual case. Whether being asked to make an Order or to approve an agreement reached between the parties (known as a consent order), the Court’s aim is to achieve fairness, and wherever possible to meet the parties’ respective reasonable needs. The Court’s decision will based on the circumstances of each individual case. The Court can make orders under the broad headings of capital, income and pensions.

In some cases it may be appropriate to make an order that there is a clean break, by inserting a clean break clause into the order, this will end any financial obligation either party may have to the other and therefore, preventing your spouse from making claims against your finances (income, pensions, savings etc) in the future and after your divorce has been finalised.

In other cases, some form of maintenance (excluding maintenance for children) may be suitable, which will give an ongoing obligation and therefore a clean break may not be possible. Even if a clean break order is achieved, maintenance will still be payable for any dependent children. If you have any issues regarding the receipt of child maintenance, you should contact the Child Maintenance Service.

The law also now provides for pension sharing on divorce, usually by way of a pension sharing order, but this may not be appropriate in all cases. The law surrounding this area is complex, and in some cases specialist financial advice may be required.

It is important to note that a divorce can be concluded even if financial issues remain unresolved. There may however be tactical reasons to delay concluding the divorce until financial matters are dealt with.

It is important to note that financial claims against your spouse and vice versa do not cease to exist automatically once your divorce has been finalised and therefore an order should be in place to prevent any claims against your finances being made. There are some bars to this, such as remarriage, but advice can be provided if necessary in respect of this.

In most cases the largest asset of the marriage is the home. In some cases the family home can be sold and the proceeds divided (not necessarily equally) between the parties. In other cases one party may be able to “buy out” the other, or the property may be transferred to one spouse with the other receiving a larger portion of other assets.

Wherever there are children the Court’s priority will be to provide them with a “suitable” home, but this does not automatically mean they will stay in the family home. In some cases, one person could stay in the family home with the other keeping an interest in that property until it is sold, perhaps when the youngest child reaches 18. It is important to note that this does not happen very often.

Please be aware that even if your spouse owns the family home in their sole name, you are not barred from making any claim against it.

You should consider taking certain steps in respect of the family home at the outset of proceedings.

Often, where both parties jointly own the family home, they do so as ‘joint tenants’. Therefore, the property is held by both parties and if one party were to die, their share would automatically pass to the survivor, irrespective of any Will or proceedings taking place. To stop the automatic passing of the deceased party’s share of the family home to the other, you can sever the tenancy and become what is known as ‘tenants in common’. The property is still owned by both parties, but if one party died, their share of the property would not automatically pass to the survivor, but in accordance with their Will (if they have one) or under the intestacy rules.

If you choose to sever the tenancy you should update or create a Will, as without one, your share would still pass to the survivor under the rules of intestacy.

If the family home is held in the sole name of your spouse, you should consider applying to the Land Registry to place a Matrimonial Home Rights Notice on the property. This is placed on the property title and prevents your spouse from selling/transferring the property without your knowledge and consent.