Divorce – I’m divorced…that’s it…isn’t it?

In the advent of divorce law changing in April 2022 to no fault divorce and the proceedings being streamlined via the online portal, meaning that more people are acting in person, it is more important than ever for people to understand that being divorced does not mean this ends their financial claims against one another. The Final Order (previously called Decree Absolute) in divorce simply ends the marriage.

Financial Claim

A parties’ financial claims can remain open for an infinite amount of time which can result in a party bringing an application for financial relief many years after the divorce was finalised. It is therefore very important for people to understand that they should always look to deal with this issue as soon as is practicable – most lawyers would advocate that such matters should be considered alongside divorce/separation rather than waiting until the end of the divorce process.

The issue of financial relief is not easily summed up in one article as it is not as simple as taking a one size fits all approach. Clients are often surprised at the array of claims which can be made.  These cover, for example, spousal maintenance payments, child maintenance payments, capital claims for lump sum payments, property adjustment orders which provide for a sale or transfer of property or land held in a party’s sole name or in joint names with another person and pension sharing orders, which is where a party seeks a share of a spouse’s pension to be transferred for their benefit.  Other claims include seeking an interest in a business and chattels, which can include pets.

Courts and solicitors alike work within a framework to determine how best to divide assets pertaining to the marriage.  A determination needs to be made as to what constitutes non-marital and marital assets and how to deal with such matters as post-separation accrual and inheritance.

Broadly, we use Section 25 of the Matrimonial Causes Act which looks at the income and capital needs of the parties; the financial needs, obligations and responsibilities each of the parties 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 to the marriage and the duration of marriage, any physical or mental disability of either of the parties to the marriage, contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contributions by looking after the home or caring for the family and, the conduct of each party. Of paramount concern is any child or children of the family.

Alongside this framework sits a plethora of case law which helps determine how certain assets are divided pursuant to a set of circumstances which may be similar to yours.  However, your circumstances are usually individual to you and there will be nuances within your case which may have a material effect on how the case is concluded.

On occasions we look to instruct experts such as Accountants, Tax Advisors, Business Valuers, Pension Actuaries and Chartered Surveyors to assist in cases where there is a dispute over an assets valuation or how it is to be determined within the proceedings.

It is important to highlight alternative dispute resolution (ADR) methods in trying to resolve such issues. These include mediation, collaborative law and round table meetings as it is often beneficial for the parties to retain some autonomy over such decisions rather than leaving it in the hands of a Judge within court proceedings which can be adversarial in nature.  The benefits of ADR are that you can be a lot more creative in reaching solutions which benefit the both of you.

However, reaching a financial settlement is never easy and therefore it is imperative that both parties seek legal advice as early as possible in the process. Parties should be encouraged to take a collaborative approach to resolving matters and understand that it is highly unlikely that either party will succeed on everything they set out to achieve. Understanding this from the outset can ensure parties don’t become entrenched in their respective positions. Identifying the need to compromise in such matters is the key to often resolving matters consensually rather than slugging it out in court which can cause delay and create large legal fees, notwithstanding that it can also have a detrimental effect on any child or children of the family.

How can we help?

If you have any questions or queries in relation to divorce, finances, children or separation generally, please do not hesitate to contact Matt Clemence on 01473 407181 or email [email protected] who would be more than happy to assist you further, alternatively you can visit www.kerseys.co.uk and click “Call Me Back” and a member of our family team will be happy to contact you.