- 16 May 2022
- •
- 3 min read
Where do I stand financially if we separate or divorce?
Separating from your spouse can be a very uncertain and daunting time. The law surrounding the division of your finances can be very complex and legal advice should be sought early on.
At Trethowans, we offer a 30 minute free initial conversation. Get in touch today if you would like to discuss your situation with us.
Starting point
In order to consider how to divide the ‘pot’, we first need to assess what there is within in. If you are hoping to negotiate on an amicable basis, either between yourselves, at mediation or via solicitors without the input of the court, then financial information (known as financial disclosure) will need to be exchanged on a voluntary basis. If one of you chooses to proceed to Court with an application for ‘Financial Remedy Proceedings’, then ‘full and frank’ financial disclosure is no longer voluntary and forms part of the required directions of the court.
Financial disclosure shall include all property, assets, bank and saving accounts, business interests and pensions, whether these are in joint names or in the sole name of one of you.
The matrimonial ‘pot’
Once disclosure has taken place then the information can be considered and usually input into a spreadsheet known as an ‘Asset and Liability Schedule’.
One of you may argue that certain assets should be disregarded as ‘non matrimonial’, this could include an asset or inheritance obtained before or after to the marriage. However, it should be noted that the court has the power to deal with all resources available to either of you, usually in order to meet the other ‘need’, whether these are considered non-matrimonial, or not.
The courts approach
The court is obliged to consider all the circumstances of the case and therefore each case stands on its own facts. The first consideration for the court is the welfare of any child of the family.
The court’s general principles when deciding what financial awards to make are ‘needs compensation and sharing’. The court will consider how to fairly divide the ‘pot’ to meet both your housing and financial needs. In real terms, only in ‘big money’ cases, will the court turn to the sharing principle, after all the parties’ needs are met.
The legal factors
The law states 8 factors that the court must consider when dealing with financial orders:
- The income and earning capacity, property and financial resources available;
- The financial needs, obligations and responsibilities each party has, or is likely to have in the near future;
- The standard of living enjoyed by the parties prior to separation;
- The age of the parties and length of the marriage;
- Any physical or mental disabilities;
- The contributions each party made to the welfare of the family; to include financial and non-financial contributions,
- The conduct of the parties (only in exceptional circumstances),
- Any benefit that would be lost as a result of the divorce.
Legal advice
It is important to seek legal advice as early as possible, to provide you with the best advice to move forward. At Trethowans, we are all members of Resolution where we observe a code of practice and seek to resolve matters in a child-focused, constructive way.
Please get in touch to arrange your free of charge initial consultation.
For more information, you can listen to our podcast @CandidDivorceLawyer – ‘Will my contributions be taken into account upon divorce’. To listen click below.
