On the granting of a divorce or dissolution, it’s important to discuss financial arrangements and how you will split the assets
It is best to try and come to an agreement between the parties when separating finances and assets. Mediation can assist parties with this process.
Once both parties reach an agreement a lawyer can draft a court order to complete the process formally.
If parties cannot reach an agreement then it may be necessary for one party to apply to the court for a Financial Remedy. The court will then control the process, including ordering the parties to exchange financial information.
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In order to make an application to the court, the applicant will have had to have attended a Mediation Information and Assessment Meeting (MIAM). This is where discussions occur around the possibility of mediation. If the matter is not suitable for mediation then the mediator will provide a form allowing a court application to be made.
The court can order the transfer of property and also order a sale. It can also deal with the division of sale proceeds. The court can also order payments between the parties including lump sums and/or maintenance. Orders can also be made in relation to the spouse or partner’s pensions.
The court will seek to achieve a ‘clean break’ for both parties if possible, to prevent the parties being financially reliant on each other after divorce or dissolution.
Factors the court may consider
The welfare of any child under the age of 18. If the assets are limited, then the court will look to suitably house and care for the children first.
The court will also consider the income and earning capacity, property and other financial resources which each party has or is likely to have in the near future. This includes whether it would be reasonable to expect either party to try and increase their income by increasing their hours of employment or looking for a higher income.
The court will consider each party’s reasonable financial needs, their obligations and responsibilities, including dependents, debts and reasonable outgoings which each party has or will have in the near future.
The court will look at the standard of living enjoyed by the parties during the marriage or civil partnership. It is usually not possible for the parties with limited resources to enjoy the same standard of living, but with higher asset cases, this may be more of a factor.
The court considers the ages of each party and duration of the marriage or partnership, including any pre-marriage or partnership cohabitation. This can provide information as to a party’s earning potential before retirement, how long a party was financially dependent on another for example. The court can use this information in determining maintenance and whether there are assets that pre-date the relationship.
The court considers any disabilities of the parties. This is likely to have an effect on resources, needs and possible earning potential.
The court considers contributions which a party has made through the marriage or civil partnership. For example, if one party has sacrificed a career to look after children.
The court will consider the conduct of each of the parties. With relation to the finances, the court will take into account any financial misconduct by either party. For example, not disclosing financial information.
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