Where both parties are in agreement as to division of finances and need to formalise the agreement a “Consent Order” is submitted to the court. Once sealed by the court it becomes a binding order. It is always a preferable option to resolve matters amicably both in terms of costs and to avoid the stress, uncertainty and anxiety of court proceedings
If agreement in respect of financial matters in not possible either the Husband or the Wife can apply for financial settlement once divorce proceedings have been issued.
After submitting the application to the Court a formal document , a form E, must be completed by both parties and this must contain full disclosure of each party's financial situation. The court also imposes a time-table at the outset of the proceedings. This initial process is designed to lead to negotiation and is aimed at settlement. If negotiation fails you proceed to a final hearing in front of a judge who will give a decision. The Court's decision is binding. The court can impose penalties on uncooperative parties.
There is often no simple answer to the division of matrimonial assets and negotiation and the court process must have regard to the law and in particular will have regard to Section 25 of the Matrimonial Causes Act 1973, which lays down the rules on how the courts shall deal with property and financial issues.
Section 25 of the Matrimonial Causes Act 1973 specially lays down the basic guidelines in the settlement of matrimonial assets and financial matters. In particular, it enumerates the principles that must be considered by the court in exercising its power to issue financial provision orders, property adjustment orders, and ancillary orders for the sale of property, as provided in Sections 23, 24, and 24A, respectively.
The courts must take into account certain factors when considering making an order under Section 23, 24 and 24A having regard always that the needs of any dependent children are paramount.
- the income, earning capacity, property and other financial resources which each of the parties to the marriage, has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party to the marriage and the duration of the marriage;
- any physical or mental disability of either of the parties to the marriage;
- the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
- in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
The way in which these factors are interpreted by the court exercising it’s discretion or by lawyers when negotiating are open to variation thereby making no right or wrong answer.