Q. We have been unable to reach an agreement on how we should divide up our assets.  Are there any alternatives to applying to the court to resolve matters?

A. Yes there are.  You can attend mediation together where an independent mediator will ask you to provide all your financial documentation and assist you with reaching an agreement.  If an agreement is reached, they will prepare a document which we can convert into a Consent Order which will be sent to the court for approval to make it legally binding.  Another option is to have an arbitrator decide through private arbitration which is usually a quicker and more cost effective process than issuing court proceedings.

Q. My wife and I have decided to divorce. How do we sort out our finances?

A. One of the most difficult things to sort out on separation or divorce is the family finances and how both parties will be able to support themselves and their children in the future. As you are married, you and your wife have financial claims against each other. The starting point will be an equal division of everything you both have, including capital and income. Various factors will then be considered to decide if this is a fair division in your circumstances, such as the needs of any children, the needs of the parties, your ages and how long you have been married for.

Q. My husband and I have been separated for a while and I do not know what his financial position is. How can I find this out so I can decide what is a fair settlement?

A. You and your husband have a duty to give full and frank disclosure to each other about your financial position. We would always recommend that you go through a process of full financial disclosure by using a form called Form E. You both complete and exchange a Form E giving details of your assets, savings, investments, bank accounts, pensions, liabilities and income, with supporting documentation. You will then have a clear picture of each other’s financial position and what could be divided between you.

If your husband refuses to complete a Form E, you may need to make a court application. The court will then require your husband to do the Form E as part of the court process. You will need to consider mediation and may need to attend a mediation information and assessment meeting (MIAM) before issuing court proceedings.

Q. My husband earns a lot more than I do and he has now left the family home. I am concerned that he is going to stop paying towards the mortgage and utilities. What should I do?

A. You should try to agree an amount with your husband that he will pay to you each month to support yourself whilst the finances are agreed. This is called spousal maintenance and, if paid until you agree a financial settlement before the final divorce order it is known as maintenance pending suit. This is in addition to any child maintenance that he should be paying to you if you have children.

If your husband will not agree to pay you this maintenance, you may have to issue court proceedings to seek a maintenance pending suit order requiring him to pay. You will have to show that your reasonable outgoings are more than your income (including child maintenance) and that your husband’s income exceeds his reasonable outgoings. You are effectively asking for a share of his surplus income to support yourself.

Q. My wife and I are going through divorce proceedings and have reached an agreement about how we will divide our finances. Should we put this in writing?

A. You should set out your agreement in a Consent Order for the court which you will both need to sign. You should each seek independent legal advice before you sign anything.

You can send the signed Consent Order to the court once the Conditional Order is pronounced in the divorce proceedings. You will both also need to complete a financial statement called a Statement of Information. A judge will then consider the Consent Order and will usually approve it by sealing the Order. Sometimes the judge asks questions about the Order. Once it is approved by the court, the Order will be binding on both of you and is usually effective from when the Final Divorce Order is granted.

If you do not put your agreement into a Consent Order and have it approved by a judge, your agreement will not be binding. Your financial claims against each other will continue after divorce. If you are the respondent in the divorce proceedings and you remarry in the future, you may lose these financial claims unless you take certain steps.

If you would like to discuss financial matters or any aspect of divorce, please contact our family law team on 01293 596947 to arrange a fixed fee consultation for £100 plus VAT (£120).