Financial settlement on divorce FAQs
Do I need a lawyer to reach a financial settlement?
Whilst there is no legal requirement, it is strongly recommend that you seek legal advice before negotiating or entering into any settlement agreement. It can be difficult to overturn a final financial settlement order, so it is better to ensure that you get good advice prior to entering a settlement. It is more likely that you will achieve a fair and equitable result with the assistance of lawyers, even in a friendly separation
Do I need to go to court to reach a financial settlement?
Not necessarily. A settlement can be negotiated between the parties with the assistance of lawyers. If a settlement is successfully negotiated the solicitors will provide a draft ‘consent order’ to the court setting out what has been agreed. The court will endorse the order if it is reasonable and it will then be legally binding. The majority of cases can be settled this way, so long as both parties are reasonable and desire a fair outcome.
If an agreement cannot be reached through negotiations or a mediation, then it will be necessary to make an application to the court. In these circumstances, a judge will argument from both sides and make a determination. This determination is known as a financial order. As this process will incur further fees, it is preferable to seek competent legal advice early on in the process to reduce the likelihood of a contested hearing. Of course, there will be situations where one or both parties are not prepared to adopted a reasonable stance and contested proceedings are unavoidable.
Am I entitled to spousal maintenance?
Maintenance ordinarily takes the form of regular payments made by one party to the other in order for their needs to be met. Your entitlement to spousal maintenance will depend on multiple factors, including:
- The standard of living enjoyed by both parties before the divorce.
- Length of marriage.
- Financial needs of each party (including any dependent children).
- Earning capacity and potential of each party.
- Contributions to marriage (not just financial contributions.
Spousal maintenance is a matter we would consider and advise on in respect of most divorce cases. Where a couple has had a short marriage with no children, there is likely to be less of a claim to spousal maintenance than a situation of a long marriage where one party has taken time out of their career to be the primary caregiver to children.
Can I seek to vary a spousal maintenance order?
Yes, you can apply to the court to vary a maintenance order. You will need to have a reason for this – such as a change in financial circumstances of either party, and the judge has a wide discretion, which can make it difficult to predict an outcome. On an application to vary maintenance, the judge will consider the grounds for variation and can order that the maintenance be adjusted up or down, suspend or terminate maintenance, or capitalise it into a lump sum.
Is it possible to change a financial order?
A financial order is designed to be final, however, under certain circumstances it is possible to change a financial order.
If the court has made determinations in respect of the division of property in a financial order, you can appeal the decision if you believe that an error has been made. However, there are strict time limits around this, and it is best to seek urgent legal advice in respect of what your likelihood of success would be should you appeal.
The court also has the power to set aside financial orders in some circumstances, including (but not limited to):
- Where there has been undue influence;
- Failure to provide full and frank disclosure of assets;
- Subsequent events.
There is a general underlying principle of a ‘clean break’. If you consider that the circumstances are such that your financial order should be set aside, you should seek immediate legal advice.
I am not a registered owner of our family home, do I still have a claim to the property?
If the property is owned in your spouse’s name, you will generally have a claim to a share of the property even though you are not on the title. If the property is owned by a company or trust, then you may still have a claim, though it will be more complex.
If you are living in the matrimonial home, you have a right of occupancy. The immediate risk is that if the property is not in your name, your spouse may try to sell or mortgage the property. There are methods to protect you from this, including by registering your marital right. It is important that if you are in the process of separating and are not on the title of the property that you seek legal advice as a priority to protect your interests.
Given what is at stake, we strongly recommend that you seek early legal advice on questions relating to property, ideally before instigating proceedings.
If the divorce is my spouse’s fault, will I get a bigger share of the matrimonial property?
No – the grounds for divorce have no bearing on the financial settlement. The amount you receive in a financial settlement will depend on many other factors that could be unique to your case, such as fairness, earning potential, length of the marriage, and whether there are children. The reason a marriage has ended will not impact your financial settlement.
To arrange a preliminary consultation with our family law and divorce solicitors, or to find out how we can support you, please send us an email, complete our online enquiry form or call us on 020 3811 1643.