Tag Archives: after separation

Financial matters upon divorce or dissolution of civil partnerships

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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.

 

Shared parenting should not be confused with parental rights

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Some interesting information pinged into the Frost Magazine inbox from the Law Society. Did you know that shared parenting should not be confused with parental rights?

Shared parenting legislation, aimed at strengthening relationships between parents and children after separation, could detract from children’s wellbeing, the Law Society is warning.

Responding to a Government consultation, published today, in which ministers are proposing different ways to establish the notion of “shared parenting” after separation, Law Society President John Wotton said: “Introducing a legislative presumption of shared parenting could lead to unrealistic expectations from fathers, with a huge rise in fathers asking the courts for ‘equal time’. This could undermine the Government’s drive towards mediation and out of court settlements. The Government should avoid any implication in the statute of any right to equal time with a child, or any prescription of appropriate amounts of time.

The primary focus should be on the rights and welfare of the children, not those of parents. The principle that the welfare of the child is the court’s paramount consideration should be maintained.”

John Wotton pointed out that: “The current legislation does not favour one parent over another, but seeks to ensure that arrangements following breakdown are based on the best interests of the child.

“It is in a child’s best interest to have a meaningful relationship with both parents where it is safe to do so. The benefit of ongoing involvement with both parents is already a factor in the court’s decision-making process.

“There is no doubt, unfortunately, that once a court has made an order for access, and a father finds that the access is being thwarted by the mother, there is no currently effective remedy for the father. The Law Society therefore welcomes the Government’s intention to find more effective sanctions to enforce breaches of court orders regarding care arrangements.”