Hill Dickinson gives Frost Readers the low down on separating.
When the majority of married couples divorce it is likely that there will also be financial matters to deal with. This may include the family home, businesses, pensions or maintenance. The same circumstances will also apply to the dissolution of civil partnerships.
It is important that financial matters following a divorce or dissolution are finalised to ensure that you are protected against any future claims from your former husband or wife or civil partner.
Financial matters will be resolved when the parties receive a final order from the court. This does not mean that the parties will need to attend court; but legal advice should be sought to ensure that you are protected for the future.
If a final financial order is not received then there is a risk that your former husband, wife or civil partner could make a claim in the future.
It is important to note that the court will consider financial circumstances at the time they are resolved. Although in some cases the parties’ circumstances at the time of separation may be relevant.
The outcome of any court hearing or negotiation will depend massively upon the circumstances of the case. The court in England and Wales has very wide discretion to deal with matrimonial matters as they see fit.
There are circumstances where assets acquired during a marriage or civil partnership could be excluded from financial matters upon divorce. So it is imperative to seek advice upon separation.
In 2011 the High Court heard a case where they were asked to resolve financial matters following a divorce. The wife had won the lottery during the marriage. Part of the lottery winnings had been used to purchase the matrimonial home.
The court found that there is a sharp distinction between “matrimonial” and “non-matrimonial” property. As the lottery ticket had been purchased following separation, with the wife’s sole earnings and without her husband’s knowledge the court found that the lottery winnings were “non-matrimonial”.
However, the wife had used some of the lottery winnings to purchase the matrimonial home. The court held that the money spent on the house was converted into “matrimonial” property. The High Court ruled that matrimonial property is more likely to be shared, and consequently the husband was entitled to receive a proportion of the matrimonial home.
These sorts of cases are fact specific and it is for that reason that it is essential that separated couples seek advice as to the legal consequences of their separation.
If financial matters are resolved at the time of divorce, the majority of orders will include a clean break. This means that the agreement is in full and final settlement of any claims either party will have against the other in the future. A clean break may not be appropriate for example if monthly maintenance is being paid to a former spouse.