One of the most important issues will be your financial position once you are divorced.
You and your spouse may have agreed how to split the assets in which case a Consent Order can be drafted setting out the agreement. This is an order approved by the court and it would usually be in full and final settlement.
If you have not agreed what is to happen, then the starting point is for there to be what we call full and frank disclosure. This means you would both exchange your financial information usually by completing a financial statement (form E, a copy can be downloaded from the government website – HMCTS).
Once form E’s are exchanged, there would be negotiations with a view to an agreement being reached. However, there may be concerns that your spouse has not fully disclosed his or her financial position and so questions may be asked. If you have concerns as to the honesty of your spouse, now may be the time to consider making an application to court. This is a big step to take as you will need to carefully consider the costs, consequences and the likely outcome; financial proceedings can be emotionally draining too and can last from anything between 6 to 12 months (sometimes longer) depending upon the issues involved and court availability. Agreement can be reached at any stage during the proceedings and a Consent Order can then be prepared setting out the agreement reached.
What issues does the court consider?
The most important issue is the welfare of any child of the family under the age of 18. Consideration will be given to ensuring the children have suitable accommodation.
The other issues to be looked at are as follows:
The income, earning capacity, property and financial resources which each party has or is likely to have in the future; including whether it would be reasonable to expect one party to acquire an earning capacity
The financial needs , obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party and the length of the marriage
- If either party has a physical or mental disability
Contributions made by each party ,including any contribution by looking after the home or caring for the family; - Any relevant conduct- only in exceptional cases
- Loss of certain rights
No two cases are the same and the court looks at all the factors.
Clean Break Financial Settlement
Consideration will be given as to whether it is possible to achieve a “clean break” financial settlement, which will prevent either party from making any further future financial claim against the other.
A spouse will not be penalised for remaining in the home and looking after the children whilst the other party goes out to work. The court will treat a spouse’s contribution to the marriage as equal, albeit that one spouse’s contribution was an economic and the other a homemaking contribution.
Sometimes, it is not practical for the parties to achieve financial independence immediately, and in those cases it may be appropriate for there to be a maintenance order in favour of the spouse.
Even a short marriage may create financial dependence.
The court will adopt a different approach to “matrimonial” assets and “non-matrimonial” assets. Matrimonial assets mean the assets built up by the parties during the marriage, like the family home. Matrimonial assets are generally divided to meet the reasonable needs of the parties.
“Non-matrimonial” assets are assets built up prior to or subsequent to the breakdown of the marriage, or assets acquired through an independent source.
For example:
- inherited wealth;
- personal wealth generated prior to or after the breakdown of the marriage;
- personal injury compensation;
- interest in a trust.
These assets may not be shared between the two parties save to achieve a fair outcome. The courts retain a wide discretion to treat each case differently depending on the facts.
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