The right to make a financial application automatically arises through the course of divorce proceedings, following the issuing of the divorce petition.
So if you are getting a divorce, this is the ideal time to ensure that future intentions for all assets within the ‘matrimonial pot’ are dealt with in their entirety. There is a clear process to follow which we shall help you through every step of the way.
It is important to be open and transparent in regard to assets in both joint and sole names with disclosure needed from both parties at the earliest opportunity to enable constructive negotiations to take place, with the intention of contentious court proceedings being avoided wherever possible and to enable your divorce to be as amicable as possible.
The Courts jurisdiction is broad in scope and a financial order can deal with all the following;
– Ownership and occupation of the formal matrimonial home.
– The transfer of or continued ownership of all marital assets including; land, assets within the matrimonial home, other properties in either parties name, life policies, stocks and shares, savings and motor vehicles.
– Consideration of accrued pension benefits in terms of pension sharing orders or pension attachment orders.
– Spousal maintenance, also referred to as periodical payments.
– Lump sum orders.
In an amicable divorce, matters can be agreed through negotiation, consultation or mediation. The agreements shall be set out within the form of a draft consent order, also known As a Clean Break Consent Order. Once the contents of the consent order have been approved by both parties, the draft should be lodged with the court for a District Judge to consider.
There is an additional document that should be found alongside which is the financial statement, Form D81. This must be completed by both parties with both stating that the contents are true. Providing that the judge agrees to the provisions set out, the consent order will be sealed by the court and it shall become legally binding.
The Pre-Action Protocol, which sets out the procedure for divorce and finances, must be followed which effectively means that there needs to be pre-hearing communication. If matters cannot be agreed by solicitor’s correspondence or mediation, consideration needs to be made for an application to the court. Once issued, the matter shall be listed for the First Appointment.
No less than 35 days before the date of the First Appointment, parties must simultaneously file and exchange a completed Form E, the financial statement.
The main purpose of the First Appointment is to define the issues that are in dispute and to save costs wherever necessary. The court is to determine the extent to which information and documentation is required and set out a timetable within the Order for it to be provided.
Thereafter the case shall be listed for the FDR, financial dispute resolution appointment. It is hoped that consultation can continue between the First Appointment and the FDR for matters to resolve where possible. If the FDR appointment does not resolve the dispute, the matter should be listed for a contested final hearing.
The general rule in financial proceedings is that neither party should be expected to pay the costs of the other party’s legal suit.
However the court may make an order for costs in such proceedings where it considers it appropriate to do so either due to the conduct of the parties for example;
– Failure by one of the parties to promptly provide documentation when asked to do so.
– A failure to comply with the rules and orders of the court.
– An open offer made by the other party to settle which has been flatly refused without justification thereby leading to unnecessary contentious proceedings.
– The manner in which the party has pursued or responded to the application for a particular allegation or issue.
– Any other aspect of a party’s conduct in relation to which the court considers it relevant.
– The negative financial effect upon one of the parties of any court’s order made.
If you require advice on any aspect of getting a divorce or dealing with finances, contact Nicholson Jones Sutton Solicitors.
Whether you anticipate it shall be a contested divorce or an amicable divorce, we can provided you with all the advice and assistance you require.
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