Resolving property and financial matters

Q - What will happen with the assets of the marriage?

A - The aim is to share out the assets of the marriage in a fair way, taking into account all of the relevant circumstances.

The court is directed to a list of factors which have to be considered when deciding what is a fair arrangement. We will advise you about the relevance of each factor in your case. In some cases, an equal division of the assets is the right outcome, but this is not always the case.

The court can make a range of financial orders such as instructing one party to pay maintenance to the other, to make a lump sum payment, adjusting property ownership or sharing pension assets.

It's very important that you seek advice from an experienced family lawyer when considering what kind of settlement is right for you and your family as this area of law can be complex.

Q - Will I have to sell the house and find somewhere else to live with the children?

A - Not necessarily. If you can afford to continue to live in the family home and there is not really enough equity in the property to enable you to buy a suitable home for your children if it's sold, in certain circumstances the court will order that the family home need not be sold until the youngest child reaches 18 or completes education.

If this kind of order is made, the house would be sold at a later date and the proceeds shared then. If the person who is caring for the children in the house remarries or lives with a new partner, this may also trigger a sale of the house. We can advise you as to the type of arrangements or orders that the court is likely to make in your case.

Q - How can I reach an agreement about dividing up the assets when I know nothing about my husband/wife’s financial position?

A - It's unwise to finalise a financial agreement until full information is available about the assets of both parties and their income. This is called ‘disclosure’ and involves the giving and receiving of relevant financial details so that both parties know exactly what assets there are to share out and what those assets are worth.

If a person refuses to provide disclosure of their financial position, a court application can be made and the judge ultimately can order someone to provide information and documents to prove what they have and what they earn. We can advise you throughout this process.

Q - What happens if we can’t reach agreement?

A - If an agreement cannot be reached, either party can apply to court for the range of financial orders available in divorce proceedings. The court will strictly timetable the application to ensure delays do not occur.

There can be three hearings; a first appointment when the court will consider the issue of disclosure, a financial dispute resolution hearing when the court will give guidance as to what kind of orders might be appropriate in the particular case, and a final hearing, when the court will impose an order on the parties. The vast majority of cases settle before the final hearing.

Q - Can I make a claim in relation to my husband’s pension?

A - Often, a pension can be as valuable an asset as the family home and it's important that this is not overlooked when the rest of the assets are being dealt with, even if the benefits due under the pension cannot be claimed for a number of years.

There are various ways to deal with a pension asset. The pension is usually dealt with by either ‘off-setting’, when one person receives more of the other assets of the marriage in return for not making a claim against the pension benefits of the other party, or by a ‘pension sharing order’ where the pension fund is split into two separate funds so that both parties have their own pension fund.

Pensions can be very complex and it's sometimes necessary to get further advice from either an actuary or an independent financial advisor to ensure that arrangements made are fair and achieve the parties’ aims.

Q - How long will it take to resolve the financial side of the breakdown of the marriage?

A - It's not unusual to take 12 months to deal with the issue of disclosure. This is to ensure all of the assets of the marriage are taken into account, to negotiate an agreement, to have this made into a court order to ensure it is legally binding, and to implement the order.

If court proceedings are needed, the case might take longer than this. It's important to get legal advice at the earliest stage of the process.

Q - What about maintenance for the children?

This is now dealt with by the Child Support Agency unless it's possible to reach an agreement as to what amount of maintenance should be paid for children. The Child Support Agency calculate maintenance by using a formula, which looks at  how many children you have and how often they stay overnight with the parent with whom they do not live.

It's possible to apply to court for an order to ‘top up’ the amount of maintenance the Child Support Agency have assessed should be paid if the paying parent has a particularly high income, or for an order to be made requiring the other parent to pay school fees for the benefit of a child.

The income of the parent with whom the child lives is not relevant to the amount of maintenance the Child Support Agency suggest, nor is any income of a new partner. However if a paying parent’s partner has children of their own this can affect the amount of the assessment.