Financial Settlements

A Consent Order is a written document drafted by a solicitor that incorporates the financial settlement of divorcing parties. It becomes legally binding when approved by the Court and sealed.

A Court can only approve a Consent Order within divorce proceedings and only after Conditional Order has been pronounced.

In addition to the all-important dismissal clauses, the Consent Order can also record that the financial settlement was reached as a result of:-

1. Direct discussions between the parties;
2. Mediation or the collaborative law process;
3. Solicitor led negotiations; or
4. A Court Order imposed by a Judge following contested Court proceedings.

The Consent Order will cover all the financial claims that spouses have against each other by virtue of their marriage, including claims for capital, income and pensions. The claims should all be dealt with together and not in isolation. Reaching a settlement is more of an art than a science and at all times the settlement must take account of the factors the Court would consider if asked to intervene.

Where agreement can be reached between the parties it is unlikely either party will be required to attend Court. If agreement cannot be reached it might be necessary for one party to commence a Court application.

A Separation Agreement can be used in the following circumstances:

• You are not able to commence divorce proceedings immediately
• You feel divorce is not the most suitable option
• You have not been married for at least a year.

This is a written agreement that you both sign, setting out your financial settlement. Unlike a Consent Order, a Separation Agreement is not 100% legally binding as it is not considered by the Court and approved in the same way as a Consent Order. Where a Separation Agreement exists the burden of trying to convince a Court to depart from it rests with the spouse wishing to challenge and override it.

A Separation Agreement will be given weight by a Court if, at the time, the parties entered into it:-

• Having had the opportunity to seek independent legal advice;
• With the benefit of financial disclosure concerning the assets in the case;
• Without any allegations of duress to sign the Agreement; and
• Knowing that the Agreement is fair based on the assets at the time.

A Separation Agreement can record the date of separation upon which you agree and provision can be included for either party to apply for divorce in due course.

Divorcing your spouse will mean that your assets will need to be divided into marital and non-marital assets. Marital assets will include, but are not limited to, the following:

• Money, including savings and investments
• Property, including the family home as well as second/holiday homes
• Pensions
• Any insurance policies you have
• Businesses and business shares
• Items within the properties, such as furniture
• Any other valuables you have, such as vehicles
• Financial support such as Child maintenance and Spousal maintenance payments

When reaching a financial agreement you also need to consider the division of any debt, loans or credit cards you both have.

Your entitlements in divorce proceedings will depend on a number of factors and you should be aware that there are no automatic entitlements for either party. Each situation is different and will be treated as such by the Courts when presented with a Consent Order to consider.

When making financial plans for after your divorce, you will need to agree on division of the marital assets listed previously.  These could be split evenly between the two of you, however it is only by seeking legal advice that you can understand what you may be entitled to and to support you with any negotiations.

Coming to these arrangements will require both parties to prepare a financial disclosure, which will present all of the financial assets the parties have.  Once these become apparent, you can enter into negotiations for division of those assets.

Your pension is a valuable marital asset.  Seeking legal advice from an experienced lawyer is paramount when considering your financial arrangements, particularly with your pension, as few people realise the significance that appropriate pension planning can have on your future financial security.  In some situations, a pension may have more value than your property; you may just not be aware of this.

There are several options for dealing with a pension and we can assist in advising which would be the best for your situation:

1. Pension Earmarking – under this arrangement, both parties agree on a certain percentage of pension that will be available to the other party when the pension holder comes to retirement age.
2. Pension Offsetting – this would involve offsetting the pension value against another of the joint assets, for example, the pension holder would retain their pension and the full value in return for allowing the other party to keep the family home, if it is of equivalent value. This can lead to complications and can be a difficult route if there isn’t enough value in the other assets.
3. Pension Sharing – this option involves splitting the pension from the date the divorce is finalised and so is invariably the most straightforward way to divide a pension. This will of course depend on your individual situation.

If you are not able to agree on the financial arrangements, there are several options to address this without having to resort to going to Court:

• Family Mediation – Family Mediation can be a useful way for both parties to use the experience and skills of an independent third person to assist in reaching an agreement. The trained Mediator would hear both sides of the situation, allowing both parties to be heard and ensure there is appropriate balance in the discussions.  This is a completely voluntary route, but is a proven method of reaching resolutions successfully.
• Collaborative Law – Collaborative Law works in a similar way to Mediation, however each person has their own lawyer to represent their interests. Joint meetings are held with all parties present, with the lawyers there to negotiate and assist in reaching a resolution that all are happy with.

Should either of these methods prove unsuccessful, then you may need to apply to Court for the Judge to make a ruling.  In this situation, we can support you through the process, explain each step and the impact of any decision.

It may not be a legal requirement to have a Consent Order when your financial arrangements are confirmed, but without one you could leave yourself open to financial claims from your former spouse in the future. It is therefore highly recommended that you have one in place to make your decisions legally binding. Making this a legal document will ensure there is a clean break between you and your former spouse, allowing you to move on and start your new life.