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Finance and Property - The Law

With regard to financial arrangements between you and your spouse/civil partner, the court takes various matters into account when considering what order should be made. The court considers all the circumstances of the case, gives first consideration to the welfare of any children of the family under the age of 18 and, in particular, the court has regard to the following matters:

Stressed Woman looking at bills.

  1. The income, earning capacity, property and other financial resources which each spouse/civil partner has or is likely to have in the foreseeable future including, in the case of earning capacity, any increase in that capacity which it would be, in the opinion of the court, reasonable to expect a person to take steps to acquire.
  2. The financial needs, obligations and responsibilities which each spouse/civil partner has or is likely to have in the foreseeable future.
  3. The standard of living enjoyed by the family before the breakdown of the marriage/civil partnership.
  4. The ages of each party and the duration of the marriage.
  5. Any physical or mental disability of each party.
  6. The contributions which each spouse/civil partner has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
  7. The conduct of each spouse/civil partner, if that conduct is such that it would in the opinion of the Court be inequitable to disregard.
  8. The value to each spouse/civil partner of any benefit which one spouse/civil partner because of the divorce/dissolution will lose the chance of acquiring (most usually pension provision).

Man and wife looking at accounts.The aim of the court is to achieve fairness. Following a landmark decision called White v White in 2000, the court has to consider an equal division of assets built up during the marriage, unless the marriage/civil partnership was of short duration, or the assets are insufficient to satisfy capital needs in particular re-housing. However, often a key and decisive factor is the reasonable needs (especially housing needs) of you and your spouse/civil partner, which often overrides any possibility of an equal division of assets.

In most cases, the courts no longer have power to make orders for child maintenance except by agreement; an application to the Child Maintenance Service has to be made for child maintenance to be assessed.

Mediation

Together with your mediator you will both disclose all of the financial assets that you have and you will be required to bring certain financial documents with you to your mediation session. Together you will look at the finances that are available and identify the areas of concern and explore the possible areas of agreement and areas of disagreement working together to achieve a mutually acceptable solution to your financial affairs with the purpose of ensuring that everyone has enough money to live on following divorce or separation.

Mediator with couple discussing finance.It is important to remember that you control the decisions that are made in mediation. Your mediator is impartial and objective with the sole purpose of allowing both of you to express your concerns and explore the financial issues that concern you most which will allow you both to explore to options to resolve those concerns in a mutually acceptable manner. You and your mediator can discuss both financial matters and other wider issues such as the financial arrangements for children. This is not the case in legal proceedings where children’s matters including finances for their care are generally looked at separately.

At the conclusion of mediation your mediator will draw up two documents:

  1. A Memorandum of Understanding outlining the basis of the agreements that have been reached between you both.
  2. An Open Financial Statement recording the financial documents that you both disclosed as part of your mediation sessions and record the financial assets between you and what arrangements for those financial assets have been made.

Both of these documents will have been drafted in consultation and with the agreement of you both. Copies will be supplied to both of you. These documents can then be used by your solicitor to draft a legally binding agreement if you wish to make the agreement legally binding.