Financial & Property
For any couple faced with separation, finances can often be a difficult area of discussion.
Barnes Family Law will help to mediate and advise in the areas of Financial & Property with the aim of arriving at a satisfactory conclusion for our clients, with the minimum of emotional distress for both parties and any children involved.
Resolving matrimonial Financial & Property matters within a divorce can often be far more complex than the divorce itself. For this reason financial matters are always dealt with separately from issues relating to children to help avoid any disagreements over finances spilling over and affecting arrangements for the children. It is therefore good practice to deal with these issues in separate letters and to open a separate file to deal with financial matters.
What is the Legislation?
The main piece of legislation is the Matrimonial Causes Act 1973. This Act sets out the factors that are to be taken into account when considering what is fair and reasonable. These factors are always taken into account whether financial issues are resolved by agreement, with the assistance of mediation or ultimately decided by the Court.
How to reach a settlement of Divorce Finances?
There are 3 ways of resolving the issue of matrimonial finances:
- The parties can agree how they are to be divided. This is of course the best way of resolving matters as it avoids the uncertainty and worry of Court hearings.
- Mediation can also be an extremely productive way of resolving financial disputes. In both of these cases, we are here to assist (where necessary) in negotiations and advise you on the implications of any potential agreement. Once an agreement is reached in this way we will then convert the agreement into an order that is recognised and enforceable by the Court.
- Resolving financial matters by way of Court Proceedings. This course should only be taken when all other efforts to resolve matters have been exhausted. Court proceedings can be lengthy, time consuming, expensive and often highly emotional. In some cases however this is the only option available if a resolution is to be reached.
What orders can the Court make?
As every case is different, the law in this area is flexible. The Court’s aim is to achieve fairness based on the circumstances of each individual case. Whether being asked to make an Order or to approve an agreement reached between the parties, the Court’s aim is to achieve fairness, and wherever possible to meet the parties’ respective needs. The Court’s decision will based on the circumstances of each individual case. The Court can make orders under the broad headings of capital, income and pensions.
In some cases it may be appropriate to make a “clean break” order which will end any financial obligation either party may have to the other. This is often the case where parties are young and have a good chance of making a new life. In other cases, some form of maintenance (excluding maintenance for children) may be suitable, which will give an ongoing obligation and therefore a clean break may not be possible. Even if a “clean break order” is achieved, maintenance will still be payable for any dependent children.
In most cases the largest asset of the marriage is the home. In some cases the family home can be sold and the proceeds divided (not necessarily equally) between the parties. In other cases one party may be able to “buy out” the other, or may be transferred to one spouse with the other receiving a larger portion of other assets.
Wherever there are children the Court’s priority will be to provide them with a “suitable” home, but this does not automatically mean they will stay in the family home. In some cases, one person could stay in the family home with the other keeping an interest in that property until it is sold, perhaps when the youngest child reaches 18. It is important to note that this does not happen very often.
The law also now provides for pension funds to be shared on divorce, but this may not be appropriate in all cases. The law surrounding this area is complex, and in some cases specialist financial advice may be required. It is important to note that a divorce can be concluded even if financial issues remain unresolved. There may however be tactical reasons to delay concluding the divorce until financial matters are dealt with.
Mediation helps you make decisions without spending months locked into costly litigation proceedings.
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