Although we have now evolved with ‘No Fault Based’ Divorce, finances after a registered relationship breaks down, whether marriage or civil partnership, remains complex.
The starting point for matrimonial finances particularly after at least ten years of marriage is 50/50. Then it’s a matter of what each party needs in order to accommodate themselves and live, yes at a lower level than you were accustomed to as spouses, but not leaving you homeless/destitute. The questions you’ll need to ask yourself will be: what you can afford, what you would work best for you going forward (a clean financial break), what your month to month needs are etc.
We have a pre-nuptial agreement
As long as the requirements in the drafting and execution were met, with express focus on disclosure and independent legal advice, it is unlikely that a Court will overturn the agreement.
What if we agree
You can apply for a financial consent order. The Family Court will want to see that you have both taken independent legal advice and you understand the implications of what you have agreed both now and in your future. We can draft your consent order to account for everything you need it to, from furniture division to what happens to your pets and medical insurance or outstanding debts.
We can’t have a discussion without arguing
This is when you can engage a mediator. Mediation isn’t relationship counselling. It is someone independent with a knowledge of how the Family Court works to help you communicate with one another.
You can and should attend mediation as soon as possible for the mediator can help to have a clearer idea as to what you both have, separately and collectively to work out what a division would look like.
Use the Form E financial disclosure form as a guide for what information you’ll need to have effective mediation.
A mediator will always inform you that you don’t have to agree on the spot. You can take the time to consider and take legal advice before agreeing. Your discussions are without prejudice until you sign terms.
I want the Court to decide You can make an application to the Court for a financial order. You must complete a Form E in advance and your former spouse/partner will have to do the same. You’ll have the opportunity to ask questions about their financial information and they will be able to ask
you as well. Your financial information applies to accounts, property, debts and assets not just in England and Wales but across the world. There are three hearings, and most (around seventy five percent) settle at the second.
First Appointment (FDA)
This hearing, after you have filed your Form E statements with accompanying statements, valuations and budget requirements, is where the Court will see where you are apart and if there is scope for settlement. If not, you will proceed to the next stage.
Financial Dispute Resolution Hearings (FDR)
These hearings are like mediation with the benefit of a judge. The judge will have all your without prejudice offers, open offers, a summary of your current financial position and replies to questionnaire together with expert reports and valuations. The judge will then suggest a division which they will consider fair under the Matrimonial Causes Act.
Once the judge provides their indication of what would be a final order if it was a Final Hearing, and they will encourage settlement between you. If you can’t reach an agreement, then the matter will be listed for a Final Hearing. It won’t be the same judge at this hearing as they’ve had the benefit of seeing any offers between you that are closed (without prejudice).
Final Hearing
The preparation for this hearing and final stage of the proceedings is extensive, having to provide updating disclosure and a detailed statement that addresses all the s25 Matrimonial Causes Act factors:
- Income, earning capacity, property and financial resources
- Financial needs
- Standard of living
- Age and length of marriage
- Physical or mental disabilities
- Contributions
- Conduct
- Any benefits that may be lost to you i.e. pensions
This detailed statement takes a significant amount of time, together with supporting documentation will be costly, but important for the Court to determine your position. The Final Hearing also requires that you both give oral evidence (confirm the statement you have made and highlight what you want the judge to hear) and be cross examined by your respective counsel. The Final Hearing will conclude your matrimonial finances altogether, as you will be given the opportunity to negotiate all the way until the judge says they are making their final decision.
How long does it take
If you reach an agreement, your application for an order will go before a judge on a first come first serve basis which is reviewed and approved within eight to twelve weeks.
If you apply for a financial order, it may take up to a year to resolve. You have to factor in the Court listing time.
How do Private Hearings work
There are alternatives available, which will allow you to resolve your financial application much sooner. Waiting months for a hearing which leaves you reliant on the Court’s availability may negatively impact your finances and can be emotionally taxing.
Private FDR/Early Neutral Evaluation
You jointly get to pick your date and judge with the costs being split between you. While you do not have a final decision, you get a swifter indication of what the final outcome will be, which should encourage you both to settle and reach an agreement within the time you’ve been given. After all, the judge and day will be dedicated entirely to your matter and not shared with other couples or cases.
Costs
Financial consent orders start at £2,500 plus VAT to draft and submit, depending on the complexity of the matter.
Financial applications start at £4,000 plus VAT up to the first hearing, not inclusive of counsel fees.
Speak to our Private Family team for more information