Marriage Breakdown & Finances - Frequently Asked Questions

Does a divorce automatically mean that our financial issues are considered?
This is a common misconception. Proceedings for divorce and resolving your finances are two separate issues and an application would need to be made for your finances to be considered (if agreement cannot be reached at say Mediation or through negotiation). It is however preferable to deal with the financial aspect of your marriage breakdown when divorce proceedings have gotten underway. Do not remarry if you have not resolved your finances from your previous spouse without speaking to us first.

What is Mediation?
Mediation is a voluntary process whereby you would attend a Mediator with your spouse and see if you can reach an agreement in relation to your financial aspect of your marriage breakdown. If an agreement is made, please contact us so that we can incorporate that agreement into a formal document for you. Parties now need to undertake or attempt to undertake Mediation prior to issuing financial proceedings at Court.

Will our home have to be sold?
The home (known as the “former matrimonial home”) does not always need to be sold after a marriage breakdown. It will always depend upon all the facts of the case. If you have children, they have priority and will need to be housed. Further, it may well be that one party can buy the other party out or it may be possible to delay the sale of the former matrimonial home until the children have left the home. However, sometimes, a sale is the only course open e.g. where there is substantial equity in the property which if released would enable both parties to be re-housed in suitable alternative accommodation.

What is taken into account when dividing the matrimonial assets?
There are factors that solicitors take into account when advising on financial settlement. There are certain factors which are outlined in legal statute that a Court would take into account if a Judge was to decide the appropriate split between the parties. Solicitors consider these factors when attempting to negotiate a financial settlement before and during court proceedings.
The factors are found in s.25 Matrimonial Causes Act 1973 and are as follows:-

  • The welfare of any minor children
  • The income, earning capacity, assets and financial resources of the parties
  • The financial needs, obligations and responsibilities of the parties
  • The standard of living enjoyed by the parties
  • The age of each party and the length of the marriage
  • The health of each party
  • The contributions of each party (these can be both financial and non-financial).
  • Any conduct of the parties

My spouse tells me that his/her solicitors say that a 50/50 share of our family assets is automatic, is this true?
The short answer to this is no! As outlined above, there are many reasons why a departure from equality is made and legal advice should be sought on this.

What orders can the Court make?
Again, this depends upon the circumstances of each case. It is usual to include in the divorce petition financial claims for both the spouse and the children. These are:

  • Interim maintenance (called maintenance pending suit and designed to last until the Court make an order for periodical payments)
  • Periodical Payments (maintenance after the divorce)
  • Secured Provision (payment secured upon an asset)
  • Payment of a lump sum
  • A property adjustment order (the transfer of property or changing the ownership of property)
  • A pension sharing or pension attachment order. (sharing the pensions when they are payable)

Can I keep my inheritance?
This is a common question raised by clients. Broadly the Family Courts now categorise assets into:
Matrimonial assets –assets that have been built up during the marriage (e.g. the matrimonial home); and
Non-matrimonial assets – assets brought into the marriage at the outset or assets inherited from one or the other’s family.

The distinction between types of assets can be important in endeavoring to persuade a Court that the assets should not be divided strictly equally. However, in the vast majority of ‘needs’ cases, there is only just enough capital to meet the needs of the parties taking into account pre-marital assets or inheritance monies received during the course of the marriage. Meeting the housing needs of the parties and children will be a priority no matter where the money or property has come from.

How do I formalise an agreement made in relation to our finances?
A Consent Order details any agreement reached between you and your spouse with regard to the division of your assets. It will bring your financial dispute to an end and settle the matter. The Order will give details about any lump sum, maintenance or property orders. If your matter has been negotiated without the need to attend Court, then the Consent Order will be sent to Court to be considered by a Judge who will then (if they deem it fair) seal the Order.

What is a clean break?
A clean break means that you will not be able to make a claim for financial provision against your spouse whilst they are alive or when they die. It is advisable that when a marriage comes to an end that the parties will want a clean break from the other.  If however, one party remains paying spousal maintenance to the other, they will not have a clean break (although the spouse receiving the maintenance may obtain a clean break).

Please contact our Family Law Team by telephone for free initial advice: 01392 209209.
If you choose to email, please provide a contact telephone number and we will call you at the earliest opportunity.
Nick Dudman, Director: 01392 209210. Email nick.dudman@rundlewalker.com
Susan Jury, Solicitor: 01392 209212. Email sue.jury@rundlewalker.com

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