When a couple is dealing with divorce, they have a lot of things to consider both in practical and financial respects. There is ‘no one size fits all’ way to deal with things and it is very important to consider what approach is best in each and every case. It is always the priority to try and resolve the financial arrangements which have to be dealt with as amicably and constructively as possible and to avoid conflict, as this is never helpful, particularly if there are children to also be considered. Those separating need to be able to have as positive a relationship as possible on an ongoing basis from the point of view of them continuing to be parents to their children.
That said, it isn’t always the case that an agreed solution can be reached, even if it is normally preferable, and in those circumstances, it is important to have clear advice and guidance as to resolving things as quickly as possible, even if it is necessary for the Court to have to become involved to help get there.
There are a number of ways that parties having to deal with financial arrangements on divorce can consider, depending on what is best for them and their particular circumstances. The main options to be considered are usually the following:
Reaching an agreement directly
If a couple have an amicable relationship already, it may be the case that they have discussed things between themselves and have already decided what they are going to do in terms of dividing their finances and how this is going to work in practice for them. If this is the case, it is still vital to ensure that what they have agreed is recorded into a ‘consent order’ and that the Court is asked to approve this on paper so that they have a legally binding financial order. Even though they have agreed things, without this, should someone change their mind, circumstances change, or one of them does not do what they originally said they would, they would not have an enforceable document to protect them. It is always well worth asking a specialist family law solicitor to prepare this documentation, and this can normally be dealt with very cost effectively. A solicitor preparing the documentation would not be able to advise if the outcome is fair or not, as they won’t have seen financial disclosure in order to advise on that aspect, but if both parties are happy to go ahead on that basis, this can be an option.
Mediation can be an option whereby the parties feel that they would benefit from having discussions outside of the Court process and where they feel that with the help of a trained third party, they may well be able to come to an agreement they are both happy with. Normally, parties who decide to try this option will meet with a family mediator individually at first so that they can each explain their point of view and position. After that, there are usually a number of joint sessions with them both meeting with the mediator to try and get to an agreed position. There is often some financial disclosure that takes place, but the extent to which this happens is case dependent. If an agreement is reached, the mediator normally prepares a ‘memorandum of understanding’ of the agreement between the parties for them to confirm, and if correct, have drafted into a consent order as referred to above. The procedure for then asking the Court to approve it is the same as above. If mediation is not something that the parties want to do/it isn’t suitable in their particular circumstances, there are other options to be considered.
Voluntary financial disclosure
It is often the case that even if parties want to deal with things amicably, they want to have the reassurance that they know the value of the overall finances that they are trying to resolve, and they also want the reassurance of having specialist advice from a family law solicitor in order to know if what they are being offered/agreeing to is fair. This is normally dealt with on a ‘Form E’ financial statement where both parties agree to complete this and provide their financial disclosure along with it. Once both parties are happy with the financial disclosure, they can consider along with their solicitor what might be a reasonable settlement for them. If an agreement can be reached, it can be set out in a consent order and the Court asked to approve it to make the agreement legally binding.
A Court Timetable
It is not always the case that an agreement can be reached without the help of a timetable from the Court to deal with financial disclosure. It can happen that one party does not want to be co-operative and provide what they need to in terms of their financial information, or there can be times when if arrangements to be resolved are particularly complex, one or both parties feel that the structure of the Court providing a timetable as to how and when things need to be dealt with can be a necessary and helpful focus to ensure that there is a start and end point. Even in circumstances where a timetable may be needed, the focus within that and the different stages, is still that settlement, and agreement is strongly encouraged once all of the relevant information is available. The Court will always promote this rather than the Court having to make a decision. It is normally the case that the Court having to decide can be avoided.
The above is a general overview of the usual options, but however arrangements are best dealt with, it is extremely important that there is a legally binding order approved by the Court to ensure that both parties know where they stand and have that security going forward to enable them to move on.
At Wendy Hopkins Family Law Practice we have experienced expert solicitors who can advise on this important and detailed area in order to help clients obtain the best and most appropriate outcome for them.
T: 029 2034 2233
Author: Sarah Wyburn