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Divorce and Financial Settlement
We are committed to assisting couples work through any disputes in a non-confrontational way and we work with couples to avoid them ending up in court.
We support couples in finding a workable, long term solution to resolving disputes about their Divorce and Financial Settlements. This is achieved firstly by encouraging the use of open discussion at Family Mediation. This will help you both reach an agreement about the reasons for your divorce. Dividing the matrimonial assets. Discussions can also take place about telling the children about the divorce and the child care arrangements.
The Law and Procedure if no agreement can be reached at Mediation is as follows:
The basic law of divorce in England
To obtain a divorce under English law, you must have been married for more than 12 months.
The only ground for divorce is that the marriage has ‘irretrievably broken down’ due to one of the following factors:
• unreasonable behaviour
• separation of two years or more
• separation of five years or more.
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The Court Procedure
Once you have established grounds for divorce you need to file a petition for divorce in the Family Court, the court fee is currently £550.00. This can either be completed online or by post.
The court will then serve notice on your spouse, either in person, by email or by post. Evidence of service must be shown to the court by the producing of an Acknowledgment of Service Form sent to court after service by your spouse. You or your spouse have the option to defend your divorce; however, this happens rarely, and few divorces are defended successfully.
At this point with an undefended Divorce then Decree Nisi can be applied for. Once Decree Nisi is announced then 6 weeks later Decree Absolute can be applied for. You will then be divorced once Decree Absolute is granted.
Aside from childcare arrangements, financial settlements cause the most conflict amongst divorcing parties. The financial settlement is separate to the divorce procedure as set out above but they are connected and are often dealt with to run alongside each other.
The first stage is the exchange of financial disclosure:
We will guide you on the information you need to collate to prove the value of the matrimonial property and values of other assets.
At Family Mediation we will assist you both in reaching a financial agreement.This can then be incorporated in a Financial Consent Order which can the be filed at court for the Judges approval.
What is a consent order?
A consent order, is an order approved by a judge in divorce proceedings, where both parties have agreed their financial settlement and consent to an order being made without the need for a court hearing. The consent order will explain to the court how you intend to divide assets such as money, property and savings. The Consent Order can also include details on spousal and/or child maintenance arrangements, which enables the family court to enforce these if the maintenance is not paid. Most financial orders that are made of consent, make for a clean break order, which severs all financial ties following your divorce.
If you both agree how property and money is to be divided you don’t need to complete any official paperwork or apply for a court order. However, this means that your agreement is not legally binding and so the court cannot enforce it. A Consent Order can be applied for at the Decree Nisi stage of a divorce and becomes legally binding once approved by the Judge at court.
What do I need to consider before applying for a Consent Order?
If you are in the process of divorce and are now considering the terms of your financial settlement, there are three important considerations to bear in mind to before signing the order:
1. Do not assume a 50/50 division of the assets is fair.
In most instances, starting at 50/50 is right, but don’t assume that’s right for you without looking at the finer details of your marriage, such as earning potential and childcare responsibilities.
For example, short marriages are often not divided 50/50.
It would be unfair to settle for a 50/50 division of the assets if there have been inherited assets or vastly different contributions made to held assets from one spouse.
2. Do not assume the Judge will approve your Consent Order.
Couples often assume that just because they’ve agreed a financial settlement that the Judge will grant them their order. The Judge will approve the consent order if it is fair to both parties. If they believe the order to be unfair to either party, you will likely be asked to provide more information on how you came to the settlement to ensure both parties understand the order being proposed.
3. Ensure you have full financial disclosure.
This is one of the most important parts of agreeing a fair financial settlement. You cannot come to a fair division of your money, property and assets if both parties don’t have a full understanding of their spouse’s full income, assets and pension values. If you don’t believe there’s full disclosure on money, capital or pensions.
Why should I get a consent order?
If you are selling property, or transferring property, making a pension sharing order or paying over money, then you are advised to obtain a consent order, to make sure the other party carries out what they have agreed. Obtaining the order will prevent either spouse attempting to claim for more money or assets at a later date, which gives both parties protection once the divorce is finalised. By obtaining a court order to separate your finances you sever financial ties from your spouse, as getting a divorce does not do this alone.
How to obtain a consent order?
A consent order is a legal document that has to be drafted by an experienced legal professional with years of training to become legally binding. There are specific legal rules as to how a consent order should be drafted and what can and cannot be included. The consent order can be applied for once the decree nisi has been granted in the divorce proceedings and not before. You cannot have a consent order without a divorce having been issued first.
Clean Break Order.
Our services will help you obtain a clean break order through court in a professional, fast and efficient way. You will be able to move on with your life in the knowledge that no further claims can be made against you in the future.
What can be included in a consent order?
Anything in relation to your financial situation can be included in a consent order.
The court has powers to make orders for:
Maintenance (Child & Spousal)
Sale or transfer of property
The payment of lump sums of money
Pension sharing orders
Anything the court cannot specifically order can be dealt with by way of what is called an undertaking, which is a promise to the court to do something. If this undertaking is broken, the court can enforce it, using contempt of court rules.
Consent order timescales – how long does it take?
If the contents of your consent order are very straightforward the court normally takes 3-4 weeks to process the application. However, this is dependent on which court you use to file the order with as courts in large areas such as London are likely to have a longer timescale. If the agreement appears fair then the Judge should approve it, however, if there are issues the judge can write back requesting further information to help them make a decision. If the Judge is still not satisfied they can call a hearing with both parties to attend, but this is quite rare in our experience. This would obviously extend the time until completion of the order.
You can respond to the judge by letter detailing the rationale behind the agreement and the judge may in light of the information you have provided, agree to the order. If not, the judge may request that both parties attend a hearing so as to clarify any issues. In the hearing the Judge will either approve the order or not. If they do not approve the order then you may need to revisit the agreement with your spouse to see if the agreement can be changed to satisfy the Judges concerns.
What are the advantages of a consent order?
The main advantage is that you do not need to go to court and argue your case before a judge as this could take up to twelve months. The consent order process is designed to be quick and amicable, without attending court.
What are the court fees associated with a financial order?
The current court fee for filing a consent order is around £50.00. This will need to be attached to your draft agreement when sent to the court. This fee is set by the government and will need to be paid before the order can be processed through court.
What if we are unable to reach Agreement?
If you are unable to reach an agreement by yourselves or at mediation, then the court can determine a financial settlement for you.
The considerations the court must take into account when working out a financial settlement are set out under the Matrimonial Causes Act 1973, section 25 and include:
• the duration of the marriage
• the current and potential future income and assets of each spouse
• the standard of living enjoyed by the family prior to the breakdown of the marriage
• the contribution each party has made or will make in the future to the welfare of the family
• the age of the parties
• the conduct of each party, and whether the way one party has behaved would make it unfair to the other party if the Court were to disregard it (note: this conduct has to be extreme, the courts are not interested in who was to blame for the breakdown of the marriage).
Financial Settlement / Court Procedure:
An application to court is issued on Form A. There is a requirement to attend a MIAM appointment at Family Mediation before an application can be issued by the court. Unless you qualify for one of the exemptions to this.
Emergency Financial Remedy:
Financial Injunctions or Maintenance Pending Suit Applications.
In matrimonial finances some spouses try to hide or dissipate joint and individual assets so as to prevent the other spouse from making a claim on the same. We can help to protect those assets and we can act quickly to make an application to court to “freeze” assets so that no party can deal with them without the Court’s knowledge. Or you may need to apply for an order for financial provision whilst the full application for Ancillary Relief is being dealt with.
If you are worried about the above then we can assist with your protection. contact us to discuss this in confidence.
1) Form A :
The Court process is that your application to court is prepared on Form A. The court then issue a timetable, which sets out deadlines for certain tasks to be completed by both parties. If the application is for an urgent Financial Injunction a court date is listed within a very short period of time or an application for an order can be made in the absence of the other party to freeze assets straight away. Then a further hearing is listed for both parties to attend.
If no urgent remedies are sought the timetable, will state that both parties must fill out a Financial Statement (Form E) and exchange the same with the other side. This form contains both parties’ financial information including income, capital and pension provision. Thereafter, each party must exchange a Chronology, Questionnaire and Statement of Issues based on the disclosure so far. This is in readiness for the first Hearing known as the First Directions Appointment.
2) First Directions Appointment:
This is the first of three hearings. Both sides will have the opportunity to ask further questions about the other party’s finances. The Judge will set a date for both parties to answer the other’s Questionnaire. If appropriate, the Judge may also ask for joint valuations of certain assets, so that up-to-date information is available for the purpose of negotiations. From the date of the First Appointment to the next Hearing the parties have the opportunity to make “offers” to settle. These offers must be disclosed to the Judge who presides over the next Hearing.
3) Financial Dispute Resolution Hearing:
The second Hearing is the Financial Dispute Resolution Hearing (FDR). By the time of this Hearing both parties will have had all the financial information to consider settling this matter. The Judge will also have the information and may give an indication as to how they would consider settling this matter if it was the third and Final Hearing.
The point of this is to give both parties and their advisors an idea of how this matter may proceed; it can assist them to make sensible offers to settle and also have a clear idea of costs if this matter goes beyond the FDR. If the parties agree a settlement it is embodied into a Consent Order, which is endorsed by the Judge. Both parties are bound to honour the Consent Order.
The majority of cases settle at the FDR. Some, however, can proceed to the Final Hearing. The Judge who conducts the FDR cannot hear the Final Hearing, as they will already have seen both parties’ financial offers.
4) Final Hearing:
The Final Hearing is the last Hearing. Once the Judge has heard all the evidence before him, he will make a Court Order. The Court has the following powers:
• The transfer of a property and / or tenancy.
• The sale of a property.
• To order a lump sum.
• To earmark or split a pension.
• Verify any financial agreement made before a marriage.
• Place a legal charge over a property.
• Maintenance for either spouse or child/dependant.
Contact us for your free consultation.