Financial Matters

Where there are no surplus assets, the courts will look first to the housing need of any parent who looks after the children (where there are children involved). Any additional assets will be fairly apportioned according to the needs of each party and their ability to provide for their needs. 

It is possible that you can agree on what is to happen to this asset and indeed the other assets.  Sometimes however, there is no alternative than to seek assistance from the court.   

So what will the court take into account?

• The welfare of any child/ren of the family.
• The income, financial resources and earning capacity of both people now and in the foreseeable future .
• The financial needs, obligations and responsibilities of each person now and in the foreseeable future.
• The standard of living enjoyed by the couple prior to the divorce
• The ages of each person and the duration of the marriage.
• Any physical or mental disability of either party.
• The contributions made by each person to the welfare of the family, including looking after the home or caring for the family 
• The conduct of each person, but only if it would be unfair to ignore this.   
• The value of any loss of pension that will be caused by the divorce or nullity. 

The court may also decide whether a clean break is appropriate.

These are the general considerations to be taken into account in any financial settlement after a divorce. 

There are other points to consider, such as:

Support for children Maintenance for one or other party School fees Support for a child over the age of 18 but in full time or vocational education Safeguarding assets Pension entitlements.

If your relationship has come to an end, preferably you and your ex partner will be able to decide and agree on the financial settlement. You can obtain help and advice through mediation and negotiation. However, if you cannot agree between yourselves, then the court is there to help you.

 It is a fact that the court will take into account your business or company when considering a settlement.  The court will be reluctant to interfere with the smooth running of any business or change ownership.  However, your business is likely to be not only a capital asset but also an income producing one too.  Therefore taking legal advice at a very early stage is crucial. 

 Following a breakdown of a relationship one or both parties may act irrationally, they may seek to hide assets, spend money that they would otherwise not spend.  Attempt to charge or dispose of significant matrimonial assets or generally embark upon a course of conduct that is designed to defeat or reduce the entitlement of the other party.

We at DS Legal are alive to this issue.  It is important to safeguard your home and your assets.  We may need to sever the tenancy on the matrimonial home, or place a charge on the property securing your interest.  We may need to obtain an injunction to prevent the dissipation of assets or their return if the disposal was designed to reduce your entitlement.  

We advise all clients to prepare a list of all assets and liabilities.  Liabilities incurred with the sole purpose of reducing the matrimonial pot can and will be ignored by the court if such debts have deliberately been incurred with a view to reducing the matrimonial  pot.  Such behavior may in certain circumstances amount to conduct. 

 As specialist family lawyers, we regularly assist clients with drawing up pre and post nuptial agreements.

Nuptial agreements are made before or during a marriage or civil partnership and set out how a couple’s assets and property would be split  should they divorce or legally separate.

Prenuptial agreements are completed before the wedding, and there is clear guidance as to the desired time between the agreement being finalised and the wedding taking place.

Traditionally people enter into prenuptial agreements to safeguard assets acquired before marriage.  The agreement should set out what the assets are and how they are to be divided in the event of a breakdown of the marriage.

Consideration can also be given to future assets received or obtained during the marriage, either individually or as a couple.  

Whatever the terms of the agreement this will form the starting point for the division of assets if the parties separate.  Whilst nothing can be done to prevent one party  from trying to override them, the nuptial agreement must be considered, and the focus will be on that spouse to persuade the court that the terms should be changed. 

Provided that guidance has been followed by the couple and the agreement reached is not fundamentally unfair to one spouse then the court will seek to follow the nuptial agreement wherever possible in the event of a separation.

Remember, nuptial agreements are flexible and can be updated as and when the need arises, provided the couple can agree on such amendments.  It is common for nuptial agreements to include provision for review and possible updates at specific intervals or upon certain events such as the birth of a child.  Ultimately whether such terms are included will be the couples’ decision.