One of the biggest challenges that couples face during this difficult time is trying to work out what they are entitled to from the marriage. And as with many questions in family law, there isn’t a simple answer.
What Are The Matrimonial Assets?
The matrimonial assets are the financial resources of the couple such as the family home, savings, pensions, businesses and belongings. Any debts, such as mortgages, credit cards and overdrafts, are also looked at.
In some circumstances certain assets or debts can be said to be non-matrimonial, for example, inherited assets or gifts to only one of the couple. Non-matrimonial assets and debts are sometimes treated differently, and the Court can decide to exclude them from the divorce settlement if it is fair to do so.
What Is The Main Approach?
The main aim of the Court is to divide the matrimonial assets in a way that is fair and reasonable. In many cases, the starting point is a 50/50 division of the assets. However, there are also cases where an equal split of the assets would not be the right, or the fairest outcome. This is usually when the needs of the parties or their children require this. In general terms, the assets are apportioned depending on a number of factors, such as the income and financial needs of each of the parties, the length of the marriage, the welfare of any children under the age of 18 as well as the standard of living enjoyed before the marriage broke down.
It is important to note that first consideration must always be given to the needs of the dependent children. In practical terms, this means that a home must be provided for the children.
How Are The Assets Spilt?
When sharing assets and debts, there are many things to consider.
For most couples who are going through a divorce, the family home is likely to be the biggest asset involved. And what happens to the home can be the hardest problem to resolve.
There are many options to consider when it comes to the home and these include:
- Selling the property and dividing the sale proceeds between the parties;
- One party buying the other out of the property;
- Delaying either of these until a later date, perhaps when the youngest child turns eighteen or on cohabitation or remarriage
Do I Need To Go To Court?
The straightforward answer to this question is no. If both parties can reach an agreement, they will not need to go to Court. However, a financial agreement will not be legally binding unless it is approved by a Judge. This is known as a ‘Consent Order’ and is a legal document that sets out the financial agreement and explains how the assets will be divided. If the agreement is considered fair then this will be approved online and without the need to go to Court.
If a financial agreement cannot be reached between parties, then it may be necessary to apply to Court for a Financial Remedy Order. During this process, it is likely the parties will have to attend Court Hearings, and this process can take up to 18 months if a Judge has to make the final decision in the absence of any agreements.
What Is The Standard Court Process?
Briefly, the standard Court process will involve:
- Making an application and filing this with the Court
- Preparing for the first hearing and completing and exchanging the financial disclosure form (Form E)
- Attending a First Directions Appointment (FDA)
- Attending a Financial Dispute Resolution Appointment
- And Attending a Final Hearing
The Court encourages settlements and agreements at all stages. This means that even if Court proceedings begin, they can be ended at any stage if agreement is reached. In fact, this is very common and final hearings are rare but are sometimes sadly still required. In those cases, the time taken, and the costs incurred can be substantial and the emotional impact significant, and advice should always be taken about whether the issues are worth pursuing.
Should you need help with divorce, or any other family law matter, please contact any of the private family team on freephone 0800 011 6666 or via email at legal@timms-law.com.
