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FINANCES
Why is it important to settle financial issues?
If separation or divorce is inevitable then it is vital to resolve
financial issues as soon as possible and put them into a legally
binding framework - either a Separation Agreement or Court Order
- usually by consent. If not done properly, the passage of time
subsequent to the parting can make a nonsense of finances, and make
if very difficult to sort out at a later date.
1. Do I have to Divorce? Why can’t we just separate?
We will never persuade a client to issue a Divorce Petition. That
is a personal and important decision which must be made by the client.
There is no reason why couples cannot enter into a Separation Agreement
to deal with finances and children, and leave the Divorce until
later. However remember that a Separation Agreement is only binding
if:-
(a) there has been a full disclosure of finances
(b) each party has independent legal advice and
(c) there are no subsequent and totally unforeseen events.
If parties cannot agree, then there can be no alternative but to
issue some Court Proceedings, usually Divorce. This establishes
some framework to the negotiations and if they stall, either party
can use the Court procedure to ensure progress is made.
Remember that only a very small proportion of financial disputes
in Divorce end up in Contested Court Proceedings, with experienced
Lawyers involved these negotiations are almost always settled and
embodied in a Consent Order so no one has to attend Court.
2. How will negotiations be conducted and how can I be sure
the Lawyers will not make things worse?
No specialist Family Lawyer wants to damage a friendly relationship,
we try to be conciliatory and to reach agreement. However, our professional
responsibility is to give advice to the client as to what the Law
is, and what a Court would consider fair. Frequently this advice
is not what the client was expecting. The client may have a perception
of what is fair, but this may be different from the correct legal
position. The Law is complex in this area, but is based on a series
of criteria contained in the Matrimonial Causes Act.
The main ones are:-
(a) Length of marriage
(b) Age and needs of the children
(c) Age of the parties
(d) Needs of the parties
(e) Nature of the assets
(f) Health of the parties
(g) Contributions by the parties during the marriage
(h) Pensions
(i) Standard of living.
Of course some of these criteria are more important than others.
An experienced Lawyer will instinctively be able to assess the kind
of settlement which would be appropriate, and would attempt to negotiate
an agreement on that basis.
3. What happens if we have to use the Court procedure?
The modern procedure is designed to speed up the process, to ensure
full disclosure, and above all to give every opportunity to persuade
the parties to reach a settlement. At various stages in the process
the Judge will try to help the parties to reach a settlement. As
a result few cases become contested in the Final Hearing.
It can be important to use the Court process to avoid a case drifting
into interminable (and expensive) delay. There can be no excuse
for delay under these procedures and you will get advice as to the
right time to issue an Application to the Court to put the negotiations
under a strict timetable.
4. Pensions
An important new area of Law has arisen over the question of Pensions.
These are often the most valuable asset in the marriage including
the Matrimonial Home. It is now possible to share, or split Pensions,
but that will not be appropriate in every case. It is a very complex
area and specialist advice is absolutely essential.
5. Other Matters
Other arrangements can be made and we are more frequently being
asked to advise on Cohabitation Arrangements, Pre-Nuptial Contracts
and even Nullity Petitions.
Should you require any further information, please contact our
family department.
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