like us on facebook follow us on twitter connect with us on LinkedIn
E J Coombs Solicitors Logo

family law specialists

Married Financial Dispute Help & Support

The law governing the division of income and assets on divorce is set out in The Matrimonial Causes Act 1973.  Since that Act came into force,  there have been thousands of court cases which guide us on how the law is to be interpreted.

As each case is very different to any other, the courts have a huge amount of discretion in the type of orders that they can make in a case.  Because of this, it is difficult for anyone other than a family law specialist to predict the outcome of a case.

The facts that a court must take into account are wide ranging and include:-

(a) the welfare of any child of the family;

(b) the income, earning capacity, property and other financial resources of the parties to the marriage ;

(c) the financial needs of the parties to the marriage;

(d) the standard of living enjoyed by the family;

(e) the age of each party and the length of the marriage;

(f) any physical or mental disability;

(g) the contributions which each of the parties has made to the welfare of the family, including any contribution by looking after the home or caring for the family

It is very rare that the conduct of the parties is relevant in financial cases and the grounds for divorce set out in any petition will not usually affect any settlement made.

We aim to achieve a settlement for our clients in the most cost effective way.  This means exploring all possibilities such as mediation, round table meetings, arbitration, as well as court proceedings if they are absolutely necessary.  The vast majority of our cases are concluded without the need for court proceedings.  Where court proceedings are required, we will try and negotiate a settlement for our clients as soon as possible within those proceedings, as long as it is in our client’s best interests to do so.

However a settlement is reached, it is advisable to have this drawn up into a formal document to ensure that it is effective. Agreements reached by a couple between themselves, even if recorded in a document, are rarely enforceable.

If there are divorce proceedings underway, the financial settlement will be recorded in a court order within those proceedings. In the majority of cases, a court order can be obtained without having to attend court at all. Such a court order is known as a “Consent Order”.

If there are no divorce proceedings underway, the settlement can be drawn up into a separation agreement (sometimes called a “separation deed” or a “deed of separation”).

Provided that a separation agreement is drawn up properly, in any subsequent divorce the courts will normally follow such an agreement even if one party to it has changed their mind, unless there has been a change in circumstances which makes this unfair.

For the agreement to be drawn up properly, both parties must have taken independent legal advice, both must be fully aware of the extent of the other’s finances, neither party should be under any pressure to sign the agreement and the terms of the agreement must be such that they would be considered by a court to be fair in all the circumstances of the case.

If a separation agreement is entered into and later there is a divorce, the agreement can be incorporated into a court order within the divorce proceedings.

It is difficult to predict how long it will take to deal with financial issues.  Often couples will be able to agree these in mediation in which case it will take us approximately 2 – 3 months to tie up the documentation.  In cases where an agreement cannot be reached in mediation it is often possible for us to negotiate an agreement for our clients within 3 – 6 months.  If court proceedings are necessary then these will usually take 9 – 18 months.