Within your divorce proceedings, the Court does not automatically deal with the financial aspects of your separation. These are two separate matters although they do run alongside each other.
There are a number of different options available to you to help with resolving the finances as set out below:
You can negotiate between you or through solicitors to see if an agreement can be reached. Within the negotiation process, it is a helpful exercise to exchange financial disclosure so that you get a clear picture of the financial pot to get advice on at a later date.
You could attend mediation with a trained mediator who will assist you both in resolving the finances. A mediator will ask you both to provide your financial disclosure to see if you can reach an agreement together. You are not bound by an agreement you reach in mediation until you seek legal advice on the terms of this and it is put into a form of a proposal. If attending mediation does not help you reach an agreement, hopefully you will narrow the issues between you. Please be aware that the Court will expect you to enter into mediation before you issue an application to the Court to deal with the finances. You must have attended mediation within four months prior to the issue of an application to the Court. In some cases, there are exemptions to attending mediation for example if you are a victim of domestic violence.
If negotiation and mediation do not enable you to reach an agreement, you would need to issue an application to the Court to deal with the finances. The Court then puts a structured timetable in place with up to three Court hearings. It also gives you certainty that the finances will be resolved. Throughout the process, you would continue to negotiate and hopefully reach a settlement. However, if you reach the third Court hearing (known as the final hearing) without reaching an agreement, the Judge at that hearing will hear evidence from you and your spouse before making a decision which will be binding on you both. There is always a risk of proceeding to a final hearing as you can never guarantee what a Judge will order.
Seeking legal advice if you reach an agreement by negotiating or mediation
If you reach an agreement by negotiating or mediation, you should seek legal advice upon the terms of that agreement and if advised, the next step would be to proceed with incorporating the terms of the agreement into a consent order. The consent order would then be referred to a Judge (after the Conditional Order has been pronounced in your divorce). Once a Judge has reviewed the order and approved it, this gives you a legally binding order in relation to the finances so that you can move forward in the future with the certainty that the finances have been resolved and no further claims will be made against you in respect of your relationship.
You should be aware that if you do not incorporate the agreement into a consent order, this means that there is always a risk in the future that your spouse could make any further claims against you.
If you need any support regarding financial aspects relating to separation please contact our Family Law team and we would be happy to help.