Article from The Journal
“The difference between a divorce and a legal separation is that a legal separation gives a husband time to hide his money.” – Johnny Carson
With rising living costs and recession fears, money can cause friction in any relationship. The division of financial assets during or after a divorce, marriage annulment or judicial separation is, not surprisingly, particularly contentious. If a couple cannot agree and settle their finances between themselves or if the finances are complicated, it is necessary to make formal arrangements by applying to a court for a financial order. What each party is entitled to is the key question.
Both parties must complete a financial statement so that their financial position is clear to each other and to the court. The court will consider Section 25 of the Matrimonial Causes Act 1973, one of the most important sections of legislation to family lawyers and comprises the court’s biggest guide to dividing a family’s assets.
This process, previously known as “ancillary relief divorce proceedings “ in England “is now known as “financial remedies following divorce”. It may include the sale or transfer of property, maintenance payments to a spouse, a lump sum payment and/or pension sharing and attachment orders. It may also cover school fees and child maintenance “topping up” orders, as well as child maintenance orders made by agreement between the parents. Each case is different and the rules are not automatically applied.
The process is not simple. It takes time and costs money, which is why it is so important to take proper legal advice. Very often clients come to see us believing that their assets have to be split 50/50 but this is rarely the case. Cases are more complex now than they were hitherto as estates are more complex. Many couples have more than one home, whether investment properties in the UK or a family holiday home abroad. There may a family business or partnership involved, raising questions about how to value them.
It may be that assets acquired prior to marriage or acquired in marriage through an inheritance need to be taken into account, but to what extent? Matrimonial assets ie those acquired within the marriage, and non-matrimonial assets are usually treated differently, but not necessarily, as in the famous case of Miller vs. Macfarlane
Issues such as income can be equally problematic. A typical example is when a woman has given up her career to bring up children and her husband has gone on to be successful whereas she has become career disadvantaged. What if there is only income but no capital? How long should maintenance be paid? Similarly, pension or pensions benefits need to be considered as part of the divorce process.
In the majority of cases, it is the needs of the parties that take precedence – particularly, the needs of the party with whom the children are to have their primary home. The court’s first consideration is the children. As the level of assets increases, the other factors come into play more heavily.
It is not uncommon for clients to be faced with obstructive ex-spouses who attempt to defeat financial claims on them by placing funds outside England and Wales. . This is where our skills and expertise as specialists in our field come into their own. We are able to draw upon our network of national experts, ranging from forensic accountants to private investigators, from King’s Counsel to international specialist lawyers to help with the nuances of implementation and enforcement if necessary. Mr. Carson’s comment was not as clever as he thought
We are we are regularly approached by clients who require assistance with complex and indeed unique issues. The process can be acrimonious, but at Major Family Law we believe that we really do treat our clients with the respect, compassion and professionalism they expect.