Financial claims on divorce or dissolution of civil partnerships
We will help you, whatever your financial situation, to secure your financial future. We combine unrivalled negotiation skills and litigation experience, which means we can handle even the most complex financial affairs. We can advise you on the best approach to take in your particular circumstances.
When dissolving marriages or civil partnerships you are entitled to apply for a range of financial orders.
All of the circumstances of your case need to be taken into account including:
- The welfare of any children
- Available capital, income and other resources
- Financial need
- Ages of the parties and length of the marriage or partnership
- The standard of living enjoyed before the relationship broke down
- Any physical or mental incapacity
- The contribution made by each party during the marriage or partnership
- Bad behaviour or conduct in exceptional circumstances
- Loss of pension benefits
Financial agreements typically include a sale or transfer of property, payment of a lump sum, payment of maintenance for a spouse or civil partner either for a fixed term or joint lives, pension sharing orders, child maintenance (including provision for school fees) and clean break orders.
If your spouse is not providing you with essential financial support we can help you make an emergency application for maintenance to support yourself and your family until the divorce is finalised. We can also apply for your spouse to pay you an amount to help you with your legal fees in the divorce.
If you suspect that your spouse is trying to dispose of assets, we can make an emergency application to the Court to freeze assets if necessary.
It is not always necessary to go to Court to resolve the financial issues, and in fact there are many ways of arriving at agreements without going to Court. (See Resolving Disputes and reaching agreements below).
Why do I need a clean break order after financial claims on divorce or dissolution of partnerships?
Because without a clean break Order, a financial claim can be made against you in future.
When Dale Vince and Kathleen Whytt separated and divorced 24 years ago (so long ago that the Court and their solicitors no longer have the papers), they were as poor as church mice.
But then Dale had an idea for a wind turbine, which was hugely successful, and he is now worth £90 million.
When the couple divorced they had so little they decided not to have an Order for a permanent clean break between them, as they felt it was not worth it.
Kathleen brought up their child whilst Dale became a green energy entrepreneur, and their financial situations are now very different. Kathleen recently made a financial claim against Dale Vince, and whilst not a penny has yet been paid, the Supreme Court have ruled that even after 24 years Kathleen is entitled to bring a claim against Dale.
To be sure this cannot happen to you – you need to talk to us about applying for a clean break Order – what is involved, and how much it will cost. A modest investment in an application for a clean break Order now could save you a great deal in the long term.
Not all separating spouses or civil partners decide to divorce or dissolve their civil partnership straight away. Sometimes there can be practical or legal reasons why this is not desirable or possible. In those circumstances you can consider making a separation agreement. This can include agreements you have reached about properties, pensions, maintenance and any other financial issues. Later, when divorce/ dissolution proceedings are started, the Court can make an Order by consent confirming the terms of the separation agreement.
Separation agreements should only be entered into after taking independent legal advice, and with fall knowledge of the other person’s financial circumstances. Without those two safeguards, the Court might refuse to uphold a separation agreement.
Resolving disputes and reaching agreements
How can we reach an agreement?
There are a variety of different ways to reach an agreement, which can be used by unmarried couples, civil partners, or couples going through a divorce or separation.
The following are the main possibilities:
Kitchen table agreements
This is where you discuss the arrangements that need to be made directly between yourselves, sometimes with the help of a friend or family member. It is important that you then consult a solicitor to make sure that the arrangement is fair and to make it into a legally binding Court Order. If you reach an agreement in this way we suggest you bring it to us, and we will give you clear and cost effective advice and information about how to make your private agreement legally binding.
We support the use of mediation in family disputes and can refer you to specialist family mediators locally. You and your spouse or partner attend a series of meetings with a Family Mediator. Family Mediators are trained in family law, and will not take sides or dictate the terms of your agreement. Instead the Mediator will help you to have constructive discussions to reach an agreement which suits your particular circumstances. How many sessions you will need will depend on how complicated the issues are, and how quickly you can reach an agreement. When you have a mediated agreement, in a document called a “Memorandum of Understanding” from your Mediator, you can bring this to us and we will check the terms with you, and tell you what needs to be done to make your agreement into a legally enforceable Court Order, by preparing a draft Court Order and sending this to the Court for the Court’s approval. We will tell you exactly how the process works, and the likely cost.
This involves one or more four way meetings between you, your spouse or former partner and your respective solicitors. Both solicitors need to be qualified in collaborative law, and we have a collaborative law specialist here at John Fowlers. Discussions at the meetings will be open and frank, and hopefully will lead to an early agreement. At the beginning of the process you will need to enter into a participation agreement to show that you are committed to reaching a settlement by the collaborative law procedure. If you think collaborative law will suit your needs, please contact us to ask us about it, and we shall be pleased to provide further information.
Negotiations through solicitors
This is the most traditional method in which to negotiate a settlement with your former spouse or partner. Each of you has your own family law solicitor, to whom you provide your instructions. Your solicitor will then negotiate via correspondence and telephone calls to obtain financial information from the other party’s solicitors, and then discuss this with you, and put forward proposals for settlement. A financial settlement is then achieved by exchanging proposals about the settlement in correspondence until matters are agreed.
There are various reasons why the family disputes might need to go to Court, including:
- Urgent issues relating to finance or children, or risk to a child or adult
- The other party will not negotiate, or will not provide necessary information, or has only put forward unrealistic proposals
- Where the issues are complex, and/or expert evidence might be needed
Which is the best way forward for you?
The appropriate route for you will depend on your own circumstances. Mediation works very well for some couples, but is totally unsuitable for others. If your family circumstances are quite straight forward, then you may be able to reach an agreement with little involvement from solicitors. In those circumstances, we will suggest you come and see us and seek our advice before you start to negotiate so that we can give you some pointers.
Many people believe that when you live together you are a “common law spouse” however the fact is that unmarried couples that live together have no automatic rights, and have very little protection if the relationship breaks down.
More and more people are deciding to live together, but whether you live together for a long or a short time your finances will for the most part be treated as if you are ending a commercial relationship.
We have a great deal of expertise in this area and we can advise you as to the legal claims that you may be able to make.
We can also advise and also represent you in any disputes that may arise, to ensure that you achieve a fair outcome.
The main claims you may be able to make are for child maintenance via the Child Maintenance Service, and for orders in relation to jointly owned property. The Court can make Orders defining how property is legally or beneficially owned by you and your former partner.
If the property is owned in joint names, then the starting point is that you have an equal share, regardless of any financial contributions made. However, this depends on the type of joint ownership you have, and you should take legal advice on this.
If you own the property in your sole name, your former partner may try to claim a share of the property. He or she might argue that he or she has made a financial contribution that entitles them to an interest in the property. They might claim that you promised them a share of the property. We can advise and help you with this complex area of law.
If you have children with your former partner, it is possible to make a claim for financial provision, including sometimes the transfer of a property, from your former partner, to ensure that you can provide for the child. We can look at the particular circumstances of your case and advise and represent you.
Before you start living together
You could improve your position in the event of the relationship breaking down by coming to see us and taking advice on how to arrange your financial affairs. It is very important to take legal advice about the ownership of property, particularly if you are purchasing property, or moving in together, or making a financial contribution to another person’s property.
We may advise you to keep certain properties separate, and consider carefully before accepting any financial contributions from your partner.
We may advise you to enter into a cohabitation agreement, which is a legal document which sets out what you agree would happen in future to your financial arrangements, including property, if you were to separate. In fact, if you do not make a cohabitation agreement at the beginning of a cohabiting relationship, you could do this later on in the relationship, provided you both agree.
A cohabitation agreement could cover all of your financial arrangements but especially property; other assets; joint purchases; gifts from family; the payment of a mortgage, rent or bills; and financial support for any children.
For a cohabitation agreement to be upheld by a Court it is important that you both obtain independent legal advice, prior to entering in to the agreement.
A cohabitation agreement is not romantic, but it could save you a lot of worry and expense at the end of a relationship.
For those with more complex arrangements, you may need the structure and timetable of the Court process. You may need to ask the Court to make orders for financial documents or information to be disclosed. We will be able to advise you on the best option for you when we meet you.
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