Money - following divorce

On a divorce, all property owned by either party, either solely or jointly, is relevant. This does not mean that each and every item will be sold and divided but it does mean that each party has a duty to give a full and honest picture of his or her financial circumstances.

The Courts in matrimonial proceedings have discretion as to how they are going to divide the assets and what financial awards they are going to make, guided by certain factors. These factors include:

• the income, earning capacity, property and other financial resources of each party
• the financial needs obligations and responsibilities of each party
• the standard of living enjoyed by the family before the breakdown of the marriage
• the age of each party
• the duration of the marriage
• any physical or mental disability of either party
• the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family
• the conduct of the parties (which does need to be truly serious and go beyond the sorts of difficulties which may sadly be associated with a marriage breakdown)
• the value of any benefits which one or other party would lose the chance of acquiring by virtue of the dissolution of the marriage

Where there are children under 18 the Court has to give first consideration to the welfare of such children while they are minors. This does not, however, mean that it is the Court's only consideration.

The Court has to balance up all these competing factors. Sometimes, where resources are limited, there are relatively few options available in practice.

The Court can make orders relating to all sorts of property be it houses, pensions, bank accounts, shares, pensions, businesses etc. The Court can make orders for the sale, or transfer of property, for lump sum payments and for the shares in which property is held to be adjusted.

In the absence of agreement between the parties the question of maintenance for children will generally be dealt with by an application to the Child Support Agency for an assessment. Courts are able to deal with maintenance for children only in very limited cases.

Courts do still look at spousal maintenance. The Court must consider whether maintenance is appropriate or whether continuing financial obligations between the spouses should be ended and a 'clean break' achieved.

Seeking an application for a financial remedy through to a final hearing can be a very expensive exercise. It is obviously much better if, bearing in mind the general principles which apply, the parties to a marriage can resolve matters by discussion. Depending on how easily the parties are able to talk to one another the following may be appropriate:

• direct discussion, using solicitors really just for final advice upon an agreement reached and drawing up the necessary documents
• mediation (for further information please see our factsheet on Mediation)
• negotiations conducted via solicitors either in correspondence or involving round table meetings or a combination of both
• court proceedings – even if court proceedings are initiated strong encouragement is given to the parties by the Court to try to arrive at a settlement

The process of dividing assets and finalising obligations on a divorce is not an exact science.

Key points to remember are:

• to seek legal advice at an early stage to ensure that you are thinking along the right sort of lines and within reasonable parameters
• to aim to resolve matters by agreement with an appropriate level of assistance if needs be
• where agreement has been reached to seek legal advice in drafting up the final consent order

Precautionary measures

In the absence of fraud, where property is in joint names it is generally not possible for one or other owner to dispose of it unilaterally.

There may be instances, however, where it is sensible to take steps to protect property or assets to ensure that these do remain available for distribution. We will go through these steps with you at the early stages, and discuss whether any steps do indeed need to be taken.