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When you separate, you’ll need to think about how to divide your money and belongings. Two of the biggest decisions you’re likely to make are what to do with your home and how to divide up any pensions – if you have them. The case of financial settlements following a divorce and the case of divorce are treated as two distinct cases by the Courts in England and Wales. This is because the financial settlement process is not usually dependent on the reason of divorce.
Try to give yourselves time before making a decision. It’s a lot easier to reach an agreement if you and your ex-partner are ready to talk.
It’s important that you’re honest about your finances. If you’re not honest and your ex-partner later finds out you tried to hide something, they could go to court and ask for more money from you.
With years of experience under their belts, our specialist solicitors will guide you through these difficult periods. By explaining the step by step process with care and attention to detail; our lawyers are the perfect professionals for you.
Financial Provision in the Case of Divorce
There are two forms of financial settlements following an event of divorce irrespective of whether the settlement is done through a mutual agreement between individuals or by the intervention of court:
- Capital provision (which can include a payment for housing) together with ongoing maintenance (which can be for a fixed number of years).
- The other form of financial settlement is “clean break” order. In this type of settlement, the financial issues between the parties are resolved through a capital payment which completely ends the financial relationship between the parties.
To determine the appropriate divorce financial settlement for you, the court will follow certain specific criteria laid down by statute (Section 25 of the Matrimonial Causes Act 1973) and will take into account:
- Marriage duration
- Applicant’s age and health conditions
- Lifestyle of his/her family
- Applicant’s present and prospective income and his/her national and international financial assets and resources.
- Applicant’s financial liabilities
- Financial and physical or moral contributions of the applicant to his family presently or those expected in the future.
- Evaluated cost of losses expected as a consequence of the divorce.
An Overview of a typical Financial Proceeding at Court
- The Applicant is required to initially submit Form A to the Court. The Form A is an application requesting for a Court’s intervention for the settlement of financial issues between the two parties who are being divorced. It is important to note that a court is only approached when the parties fail to reach an agreement regarding financial issues. This submission of Form A is followed by a Court’s order to both parties to provide evidences of their current financial status which is later reviewed before the First Appointment hearing.
- First Appointment Hearing
The very first court hearing of cases pertaining to financial disputes is referred to as the First Appointment Hearing. In this hearing, the Court manages the case by presenting a case schedule. The schedule talks about the information required from each party to gain insight into the financial position of each party. The hearing may also determine if it is needed to ask the parties for their property worth or if the parties must submit some expert evidence. The case schedule is declared by the Court whereby the date of the Financial Dispute Resolution appointment is set and conveyed to parties. The Financial Dispute Resolution appointment is usually arranged 3-4 months after the first appointment hearing.
- Financial Dispute Resolution Hearing (FDR)
The Fist Appointment Hearing is followed by the FDR hearing. It is imperative for the parties and their lawyers to be present at this hearing. The Judge leading this hearing shall not serve as the Judge in any future proceedings of this case. The Judge gives his/her verdict on the basis of all evidences presented in the Court. He takes into account all the financial settlement offers available to both parties.
FDR is basically held to help the parties negotiate and resolve their financial issues with the help of judiciary. The non-prejudice hearing of the FDR implies that the conversations within FDR will not be referred to in any subsequent hearing of the same case and thus the Judge for the consequent hearing will be different from the one hearing FDR. This feature of FDR helps parties reach an agreement easily since they can converse well with each other without any fear and hesitation. The FDR Judge will consider the offers made by both parties for the financial settlement and all the relevant documents and information provided by lawyers. In this hearing, the Judge tries to identify the commonalities between the interests of the two parties to arrive at a mutually agreed settlement. The Judge also convinces both parties to have logical anticipations and to reach an arrangement before the case is presented in the court for final hearing. For this purpose, he/she may give them indication about the expected verdict of their case when presented in the Court for final hearing.
Usually, the parties have their financial matters settled in the FDR with no need for further court hearings. In such a case, the FDR Judge gives a verdict to be followed by both parties and the case is closed. However, the FDR Judge has no authority to ensure the compliance of parties with his order and it is at the discretion of the parties to either comply with this order or to continue the case. In such a condition where the parties fail to reach an agreement, the FDR guides the parties about how their case will proceed. The FDR Judge gives the parties a date for Final hearing that is conducted by another Judge. However, this may take 6-12 months subject to the nature of case and availability of Judge.
- Final Hearing
As mentioned earlier, the case will be taken to the Court for the final hearing in case of the failure of the FDR. The Judge conducting the final hearing will consider the evidences presented by both parties and their lawyers. This will be followed by the closing of case with the final hearing or final verdict of the Judge to resolve the financial issues between the parties. Usually, financial settlement cases are resolved at the FDR with no need for the final hearing. On the other hand, the unresolved cases are concluded at the final hearing which takes about 1.5 to 2 years’ time from the issuance of Form A.
Financial Provision for Individuals in Unmarried Couple
Unlike married couples, there is no legally binding responsibility or duty of individuals in an unmarried couple. Consequently, the financial settlement after the breakdown of their relationship is more complex as compared to that in a married couple.
Children are deemed as a significant factor in an unmarried relationship since the financial provision rights of both parties are dependent on existence of children. In case of children, the parties can approach the Court to apply for the financial provision for children in the form of payment or the property under the Schedule 1 of the Children Act 1989.
Usually, in such a relationship, children’s mother approaches the Court for the financial provision for her children. However, the applicant will not be entitled to own any financial or property transfers. The transferred money or property will be entrusted to a trust and may be used by the child until he/she reaches the puberty or until he has completed his/her education. At this time, the trust will return the property to the payer.
Financial Provision for Individuals in Unmarried Couple with no Children
If the separating unmarried couple does not have any children then both parties are free to own their personal properties without the need to make any financial payments to their partner.
The length of the live-in or cohabiting period has no impact on the fact that both parties have no rights over the other party’s property or financial resources in lieu of the provision or maintenance. Any property or asset owned jointly by the couple will be divided among them with respect to their respective share in that asset.
Sometimes, a party to this dispute may apply in the Court for a larger proportion in the property (mostly home) as compared to the legal owner on the basis that his/her contribution in the maintenance or restoration of the property is not legally documented. Moreover, such a claim may be made when one party to the dispute failed to fulfil his/her commitment to contribute his/her share in the asset bringing about loss to the other individual.
Property Disputes for unmarried Couples
The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) has provisions pertaining to different types of land trusts like implied trust, express trust, constructive trust or resulting trust. The provisions of this act are usually helpful for unmarried couples seeking for a solution to their financial settlement disputes. A person must be fully acquainted with the domain of land trusts to deal with cases of such a complex nature.
We offer a leading service to individuals, couples and family groups aimed at reaching an outcome that is suitable for all parties.
At White Horse Solicitors & Notary Public we understand that family issues can be difficult for those involved, especially on an emotional and personal level. We approach each case with the openness and care due to such trying issues, offering personalised guidance and assistance where we can.
Please contact us to discuss your Financial Provision requirements due to Divorce / Separation or call us on 020 7118 1778
FAQs:
A clean break order is a financial settlement between you and your former spouse that has been approved by the court. It will severe your financial ties and protect you from a claim over any future assets you acquire.
The Petitioner should first get the court’s approval regarding the financial settlements and then, should submit an application for final approval regarding divorce or the Decree Absolute failing which in case of death of one party after the divorce but prior to financial settlements, the living party will not be entitled to receive any benefits meant for the spouse of the deceased.
What you do with your home depends on what you can both afford to do once you’re living separately, how much value (‘equity’) there is in the home and whether you have any children.
Your ex-partner might be able to continue paying the mortgage on your home, or at least pay something towards the repayments, after they move out.
However you’ll need to come to a more permanent agreement. It might be better to have a clean break, for example so that you and your ex-partner can rent or buy a home of your own.
You might be able to buy your ex-partner out so that you own the home by yourself. However, even if you can reach an agreement between yourselves about this, the mortgage company will want to know you can afford the mortgage payments on your own. This can be very difficult if you don’t work, or you only work part-time because you look after the children.
If you can’t afford the mortgage payments, ask your mortgage company if they’ll let you switch the mortgage to interest-only. This should reduce your monthly payments.
You should ask your mortgage company if they’ll give you a mortgage in your own name. Even if they can, you might be able to get a better deal so you should speak to a mortgage or financial adviser. They might be able to recommend other things you can try.
If there’s no way you can buy your ex-partner out, you could try coming to another arrangement. For example, if you have children, you might be able to stay in the house with them until your youngest child is 18 or finishes secondary education. You can then sell the house.
Talk this through with your ex-partner. It might make more sense for one of you to stay in the home if there isn’t much ‘equity’ in it. Equity is how much money is left from a sale after you’ve paid off your mortgage.
If your home sells for £250,000 and you have a mortgage of £200,000 on it, the equity is £50,000. You’ll probably have to pay other fees out of that £50,000, such as to solicitors and estate agents. These extra fees could be around 2-3% of the selling price so you could end up with less than £50,000.
Talk to an estate agent if you want to get an idea of how much your home is worth. It’s a good idea to get 3 different valuations so you’ve got a range of sale prices to choose from. You should also check with your bank or building society to find out how much is left on your mortgage.
Once you know the equity, try to reach an agreement with your ex-partner about what you’re going to do. Then talk to a solicitor.
Working out how to divide up the equity between you is complicated and depends on a number of factors including:
- how much you both earn
- If you have any other money or property
- your needs and responsibilities, for example if you have children
- how long you’ve been married or in a civil partnership
- how much you’ve each contributed to the relationship – financially and emotionally
A solicitor will be able to tell you what you’ll be entitled to if you sell your home.
If you’re married or in a civil partnership, you might be entitled to a share of your ex-partner’s pension when you divorce or end your civil partnership.
How you divide a pension can depend on how much the pension is worth. The most common way to share a pension is to move some of your ex-partner’s pension into a scheme of your own. This is known as ‘pension sharing’.
Pension sharing can only be done when a judge grants a ‘pension sharing order’ during your divorce or civil partnership dissolution.
The following options can be explored:
Pensions offsetting
The value of any pensions is offset against other assets. For example, one person might get a bigger share of the family home in return for the other keeping their pension. This can offer a simple, clean break which doesn’t interfere with existing pensions.
Pensions sharing
A percentage share of one person’s pensions is transferred to the other. It can be transferred into a pension in their name (either a new or existing pension) or they might be able to join the scheme the pension has come from. It will depend on the pension scheme rules as to which method they allow.
This means they then have full control over that share and can choose when and how to use it.
This option also offers a clean break, but bear in mind that you can’t share separate life cover and death benefits.
Pension earmarking/attachment orders
One partner agrees to pay a portion of their pension to their ex-partner when it starts being paid to them.
Known as ‘attachment order’s in the UK, you can get some of the pension income, the lump sum or both. But you can’t get pension payments before your ex-partner has started taking their pension.
While this might keep things simpler to arrange as part of the divorce, it doesn’t offer a clean break. This is because the partner who owns the pension still controls when and how it’s used at retirement.
Yes. Arbitration. The benefits of Arbitration are as follows:
Arbitrator Selection– In a dispute with a court intervention, the judge is not selected by the parties. However, the parties opting for arbitration can chose their arbitrator for resolving their issues. Moreover, parties opting for arbitration can enjoy a judicial continuity. The selection of arbitrator also gives confidence to the parties that their dispute is in the hands of a reliable, expert and experienced person.
Confidentiality –Financial information is mostly confidential and sensitive. The arbitration process allows maintaining the confidentiality while the information is likely to be leaked in a court since Open Court proceedings may also be covered by media. Moreover, divorcing couples prefer keeping their personal life decisions concealed from general public. This can be achieved through arbitration since it resolves disputes without any leaks of private or financial information.
Speed – Since the schedule of a court is tough with a number of cases lined up to be solved, the couples approaching a court for financial settlements may have to wait patiently for their turn. In addition, the proceedings may also take long. On the other hand, an arbitrator can be called as per his feasibility to resolve the issue with no waste of time.
Efficiency and Cost –No complexities are involved in arbitration and only a simple award is to be made in black and white after studying all the relevant information provided by parties. Since all this is performed by the same person acting as arbitrator, the process is rather quick and simple. The process can even be performed in a single day. This implies that the parties can save their costs and efforts incurred on visiting the court again and again. The arbitrator charges the parties a reasonable fee which is quite worthy considering the time and effort saved by the parties and the guaranteed confidentiality of their information.
