There has recently been much coverage in the media surrounding high profile divorce cases. In the case of Kathleen Wyatt and her ex-husband Dale Vince, the Supreme Court ruled that Mrs Wyatt could indeed pursue a claim against her ex-husband who she divorced in 1992.
The key to bringing the case some two decades after the divorce was that no court order was made at the time. Divorcing couples should always reach a financial settlement even if there are no assets from the marriage. Whether the couple is young or the marriage was of no great length, the fact remains that marriage creates a legal contract between two people and this must be brought to an end correctly.
Tying up your marital finances
There are different ways to decide how to finalise the finances and assets of a marriage:
- Reach an agreement with your partner to avoid the court process
- Ask the court to make a decision when parties cannot agree on separation of assets and finances
Should you and your partner be in agreement as to how to divide the marital assets and finances, the next step should be to formalise this agreement in a legally binding document.
Consent Order by agreement
This document is called a Consent Order. A solicitor will need to draft this document in order for it to be legally binding. This document will explain your agreement to the court and contain details as to how you are going to divide up the assets such as:
- Property – marital home, investment properties, holiday homes etc.
- Money – income, any spousal maintenance and child support can be set out in the order
- Savings – sums saved by either party
- Investments – bonds, shares etc.
Both parties will have to sign the draft Consent Order along with an application to the court and a supporting information about the parties’ financial situation
The Consent Order and supporting documentation will be viewed by a Judge and then a decision will be made as to whether the parties have reached a ‘fair and reasonable’ agreement together. If the Judge approves then the Order will be granted and will take effect from the date stated in the Order. The parties will then be bound by the terms in the Consent Order.
Asking the court to make a Financial Order
If you and your partner are unable to reach an agreement then an application can be made to the court for a Financial Order. Before going to court it is a requirement that the parties attend an initial mediation appointment called a ‘MIAM’, (mediation information assessment meeting). During a MIAM a trained mediator will assess the parties’ situation and decide whether it is suitable for the resolution of the matter. There are exemptions to attending mediation such as in cases of Domestic Abuse.
Should the matter not be suitable for mediation then an application can be made to court for a Financial Order. It will have to be proved that mediation was attempted or considered. The court will require detailed financial information from both parties along with information to assess each party’s ability to support themselves after separation. The process takes between 6 to 12 months and there are a number of court hearings to attend.
A Financial Order can be used to decide matters such as:
- Ownership of the marital home and any other properties
- Lump sum payments between the parties
- Maintenance payments to support the other spouse and/or payments to support children
Although child maintenance can be included in a Consent Order and a Financial Order made by the court, the Child Maintenance Service can provide information on child maintenance at www.cmoptions.org
Had Mrs Wyatt and Mr Vince concluded their financial matters on Divorce with an order either by agreement or by order of the court, then Mr Vince may not be subject to Mrs Wyatt’s court application now.
It is vital for divorcing and separating couples to ‘tie up’ all matters relating to property, assets and finances in an order otherwise in years to come you could find yourself at the centre of an application, especially in the case of ‘rags to riches’ situations or new found wealth. Mr Vince explained, “I feel we all have the right to move on and not be looking over our shoulders..”
If your relationship is at an end and even if you have no assets, please contact Kidwells Solicitors for a free consultation to discuss your situation. We will help you with the most appropriate way forward whether you have reached an amicable agreement or not.
Please visit www.kidwellsfamilylaw.co.uk and contact Nicola Haines or Julian McCarthy for more information.