Division Of Assets
Each case involving matrimonial finance is different. There is no automatic right to a fifty/fifty split of the matrimonial assets. The court takes into account a number of factors. It will give consideration to each of the factors in turn and gives them the weight that the court feels appropriate. The factors, although not exhaustive, are as follows:-
(a) Age of the parties.
(b) Length of the marriage.
(c) Any disability either party may have.
(d) Any contribution either party has made before the parties were married.
(e) The needs of each individual.
(f) The earning capacity, both now and in the future.
(g) The behaviour of the parties. This must be extreme and must affect the financial matters in issue, for example, if one party assaults the other such that the other cannot work or has a reduced earning capacity as a result.
A fifty/fifty split usually occurs when the parties do not have children, or the children are over eighteen years of age and the parties are roughly in similar positions
One of the factors above is the needs of the parties. We often find that this can be the most important of the above factors. The needs cover the situation in respect of the children. If the children are living with one of the parties then the court will ensure that the children have a roof over their heads and this may decide whether the former matrimonial home is sold. The court would only order the sale of a former matrimonial home where they were sure that there would be sufficient equity, together with any other mortgage capacity, of the residential parent for them to rehouse themselves. The way that the court can deal with the matrimonial home is as follows:-
a. Order an outright transfer to one party. This will depend on the amount of equity and usually this will only happen if there is a fairly small amount of equity in the property or there are sufficient other assets to compensate the party that is losing the matrimonial home.
b. Transfer to one party with a lump sum to the other. If the person in possession of the matrimonial home can raise a sufficient lump sum to satisfy the court that it is a fair distribution in the circumstances then that is a possibility.
c. Transfer subject to a charge back. This is commonly known as a “Mesher Order”. This basically postpones the sale to the happening of a certain event which is usually the youngest child becoming seventeen or ceasing full time education, marriage or cohabitation or six months of the party with residence of the children or death of that party or voluntary sale. This type of order is normally limited to a situation where the party that has care of the children cannot afford to purchase the other party’s interest and there would be sufficient monies left after a sale of the property (“equity”) in order for an alternative property to be purchased. The court tends to consider these matters as a “last resort” as often it is merely postponing the problem.
d. Sale of the matrimonial home. The court will order a sale of the matrimonial home when it considers that there is sufficient equity for the person with care of the children to purchase an alternative property or in circumstances where there are no children to sell the property to provide fairness between the parties.
Pensions have become much more significant in the last six years. It can often be the major matrimonial asset. Pensions however cannot be realised immediately and are therefore they are not a liquid asset. The court will first of all look at what is known as a CETV of the pension. This is obtained from the pension provider, whether it be a private pension or an occupational pension. If the amount of the CETV is small in pension terms, for example as a rule less than £30,000, the court would be likely to disregard that pension altogether. Also due to the fact that the pension cannot be realised immediately the court are unlikely to provide it with a value of the amount of the CETV when deciding the split of the assets. Each pension differs depending on how long a person has been in a scheme, what type of scheme it is and at the age of the person with the pension and the amount of time that there is until the pension comes into payment and the amount of time that that person has been contributing to the pension. If the contributions have occurred before the parties are married, the court would usually attribute the value of a pension from between 20% to 70% of the actual CETV.
The possibilities which the court can consider are as follows:-
Set off. This basically means that the person who has the pension would retain the pension but would receive less of the other matrimonial assets. This is by far the most common way of dealing with pensions.
Pension sharing. This would basically mean that a court would order a proportion of the pension to be split between the parties in whatever percentages were appropriate. That money can then be paid into the other party’s own pension scheme whether occupational or private.
Earmarking. This means that a certain percentage of the pension is retained within that person’s scheme and when that pension is in payment the person without the pension would receive a proportion of the pension which has been “earmarked” for them.
Full and frank disclosure – Both parties have to make what is called full and frank disclosure. This means that both parties must provide full details of their financial position supported by documentary evidence. The following information will be required:-
a. Matrimonial home. If there is a matrimonial home then the value of that would need to be agreed. If it cannot be agreed then a valuation would be required. Initially usually the person that is in possession of the matrimonial home will provide three Estate Agents valuations, the average of those three will then be put forward as a possible valuation. If either party then still disagrees, then a formal valuation will be required from a professional valuer, the costs of which will be split on a fifty /fifty basis. It is very difficult to argue against a valuation that is carried out on a joint basis.
b. Bank accounts. All bank and building society accounts for a period covering the last twelve months
c. Pensions. It is necessary for yourselves to obtain from your pension provider a CETV in respect of your pension
d. Endowment policies. Surrender values need to be obtained in respect of endowment policies. Again either ourselves or the other party’s solicitors will obtain these surrender values.
e. Other capital assets. Again any shares or other assets will have to be disclosed in support of that documentary evidence.
f. Valuations of other items. We try to agree valuations of say motor vehicles. However, it may be necessary to obtain a valuation in respect of a motor vehicle or for example jewellery.
g. House contents. The court are loathe to get into an argument in respect of property contents. Often arguing over property contents is more expensive than the actual value of the contents themselves.
h. Income. Twelve months wage slips need to be supplied together with your most recent P60. If you are self employed then accounts for the last three years will need to be supplied. .
It is often advisable to be referred to mediation. An agreement between you at an early stage would reduce substantially the legal costs and it is far better to reach an agreement that you both consider to be fair rather than to have such an order imposed upon you at a later stage. Please refer to our mediation leaflet for the details of how mediation works.
Agreement before the issue of proceedings
After full and frank disclosure has taken place each party, with their solicitors, will consider what they feel is a fair order. Usually offers of settlement are put forward. The majority of cases are settled without the issue of proceedings and are dealt with through what are called consent orders. This would mean that you may never need to set foot in to court during the whole divorce procedure. If a financial agreement occurs then this can be put forward by both parties via their solicitors in the consent order. This is then put before a Judge at court who will consider the order and if he/she feels that it is fair in the circumstances, then the order would be made without either party attending. Again, it is advisable to come to an agreement between you with the help of your solicitors as this will cut down on legal costs. The situation is that now the courts will only rarely order costs against one or other of the parties, so even if you wish to go ahead to court and issue the proceedings yourself then it is unlikely that you will recover costs against the other party. You would only do so if they were being unreasonable.
If negotiations fail or if the other party will not enter into negotiations then the procedure is as follows:-
a) Issue of proceedings. One of the parties will issue an application to the court. This is accompanied by a fee. The court will then issue some short directions and provide a date which will usually be two or three months in the future when the first hearing will take place. In between the issue of proceedings and the first hearing taking place, each party has to file what is called a Form E. This is a lengthy document which contains details of all the financial assets of that party supported by documentation. This needs to be filed approximately three weeks before the first hearing.
b) First hearing. At this stage the court will deal with any outstanding directions that it feels appropriate, for example, if there is a matrimonial home and if the value has not been agreed then the court would usually order a joint valuation.
c) When we receive the Form E we would normally go through it with you and make a list of questions that we would like to ask the other side. These questions would be relating to the disclosure of documents, again the court may consider making a direction in respect of replying to the questionnaires. It will be necessary for you to attend the first hearing. If everything was in order before the first hearing then this could be dealt with as an FDR (see c) below.
d) The court at first hearing would adjourn the matter for what is known as an FDR. This is a fairly new way of dealing with financial matters. The parties will need to attend approximately one hour before the hearing.
Financial dispute resolution hearing
By this stage the parties will have disclosed their financial position. The idea of an FDR is to bring the parties together to see whether a last attempt could be made to try and resolve the dispute between them. At this stage the Judge will give an indication as to what order he would make if he was deciding the case today. The parties are then usually asked to go out and consider that and try and reach an agreement. If an agreement cannot be reached then that Judge will rule himself out of hearing the final hearing. Further directions may then be made with a view to a final hearing.
Throughout the court procedure the Judge will continually indicate the amount of costs that have been incurred in relation to the matter. Before each hearing we are ordered to file full details of costs incurred to date. If the matter goes to a final hearing then the costs are usually at least double for what they would be at the FDR. At a final hearing the court will hear evidence from both parties. The Judge will then make an order based on the evidence that he has heard. The problem with this is that the order will then be imposed upon you, so if you are not happy with the order there is little that can be done about that. The grounds of appeal are extremely limited.
Contact Our Division Of Assets Solicitors In Lancaster
Our specialist Family Law solicitors will deal with you with compassion and sensitivity and will guide you through this complicated and stressful process. We have many years of experience and we will try and minimise conflict where possible.
Douglas Clift & Co Solicitors will provide a free 30 minute initial consultation to assess your circumstances. We will then explain the costs involved and give you information about the funding options available to you. Contact us now on 01524 32437 or alternatively use our contact form to discuss this further.