Settling the finances between yourself and your partner is separate to the divorce proceedings, although it is sensible for this to happen at the same time. If an agreement cannot be made then an application can be made for the Family Law Court to deal with a financial settlement. If an agreement can be reached your divorce Solicitor can draft a Consent Order for you.
When signed by both parties this document can be lodged with the Court for approval at any time after the Decree Nisi is pronounced. When approved by the court, this agreement will become legally binding on both parties.
The court will consider all circumstances including:
If you are considering a financial settlement it is very important that you seek advice before agreeing anything (especially concerning mortgages or endowment policies).
If one of the husband and wife earn substantially less than the other, they may be able to apply for maintenance. The amount of maintenance will depend on the amount of income and each party’s reasonable needs. A 'clean break' settlement capitalises maintenance payments so that the lower earning party receives a greater share of the capital assets.
The court can intervene if they suspect that a party has (or is about to) dispose of assets in an attempt to frustrate the other party's financial claims. The courts’ powers in these circumstances can be put into action during the financial application, or sometimes after an order has been made.
Contact us as soon as possible if you believe your partner has acted, or will act, in this way and we can take steps to protect you.
It is therefore essential to obtain legal advice before considering any financial settlement. Who gets what is based upon a range of criteria and also the provisions of the particular scheme. A final settlement involving a division or other dealing in respect of a pension will need to be confirmed by a court order. It is important to note that upon divorce, beneficiary designations, if applicable, should be changed on pension schemes. In addition, consideration should be given to changing your will as your circumstances change.
The Court can:
Property issues in financial settlements are resolved depending on the needs and resources of each partner. This can include:
Endowment policies also need to be considered.
If a business is owned by the couple, each party's involvement and assets of the business need to be carefully planned for. Working practices need to be agreed upon, for example if the business needs to be restructured or one partner buys the other out.