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Financial settlement on divorce FAQs

Do I need a lawyer to reach a financial settlement?

Whilst there is no legal requirement, it is strongly recommended 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 mediation, then it will be necessary to make an application to the court. In these circumstances, a judge will hear argument from both sides and make a determination.  This determination is known as a financial order.  As this process will incur significant 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 adopt 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 income 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);
  • Current and future earning capacity of each party; and
  • Contributions to the marriage (not limited to 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 where there has been 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.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 (order that a lump sum is paid up-front so that there is a clean break between the parties, rather than payments made on an ongoing monthly basis).

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) situations where there has been:

  • Undue influence;
  • Fraud;
  • Failure to provide full and frank disclosure of assets; or
  • A subsequent event which undermines the purpose of the order.

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 your main home is owned in your spouse’s name, you will generally have a claim to a share of the property’s value 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 without your consent. 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 reasons for your divorce are a sensitive matter between you and your spouse, and the court will not need or want to hear evidence on this or take it into account (except in highly exceptional cases).  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.

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