Financial Provision Solicitors
(The Financial Aspects of Divorce/Dissolution)
Financial provision (formally known as ancillary relief) is the term used for the orders that a court can make - often called the divorce settlement. These orders include regular maintenance payments, a lump sum, transfer of property and even pension sharing. Either party in the proceedings may apply to the Court for financial provision.
Settlements in a divorce / dissolution case can be agreed by spouses / partners with the help of a specialist solicitor and without the involvement of the courts. This can be done either by entering into a separation agreement or by agreeing the terms of a court order (consent order). These can be done at any time during proceedings, although court orders (formerly known as decree nisi) can only be made after the decree nisi / conditional order has been granted. If a pension share has been agreed this can only be implemented by an order.
To enable the court to make an informed and binding decision both parties are under a duty to give full and frank disclosure to the other about their income and assets. In effect, everything reasonably required for a settlement to be negotiated should be provided voluntarily. This non-exhaustive list includes the following:
- Last two years accounts
- Latest tax returns
- P60 last three wage slips
- Current loan/mortgage redemption statements
- 12 months bank/building society account statements
- Details of any other assets held if the party has a beneficial interest within it
- Pension valuation
The fact money or assets may be held in the name of a third party is irrelevant to the requirement of it being properly disclosed.
If either (or both) parties fail to provide full disclosure any settlement / order may be put in jeopardy.
The Court Process
This is private, and, in theory streamlined. Automatic orders follow an application setting a timetable for things to be done. The order confirms the date when a full pro forma statement is to be prepared by each party, lodged with the court and served upon the other. The order will deal with when formal questions/requests for further documentation should follow. Finally, the order will confirm when the matter is listed before a District Judge for what is termed a First Directions Appointment (FDA).
At the FDA the District Judge will deal with the direction as to any necessary valuations of assets and approve/refuse disclosure requests. The idea is the District Judge limits disclosure to what is believed relevant in order to resolve the case. They manage the case so that the parties do not engage in unnecessary and potentially costly arguments. At this point the District Judge will usually list the matter for a second appointment known as a Financial Dispute Resolution Appointment (FDR). They will also set a date by which the information and documentation requested and approved by the District Judge should be provided to the court and the other side.
Financial Dispute Resolution
The purpose of the FDR is to try to reach settlement. If necessary the judge will provide their view point to assist both parties if they have formed unrealistic expectations of their case. The FDR will (in theory) be before the same District Judge who dealt with the FDA so as to allow for judicial continuity. The meeting is an "all cards on the table" hearing at which serious attempts are made to settle matters. Prior to that appointment, there is an obligation on the parties to make offers to settle through their solicitors.
If the matter cannot be resolved then it will usually be listed for trial. Sometimes, if appropriate the FDR is adjourned to continue at another time. The District Judge who conducted the FDR will take no further part in the proceedings.
Separation Pension Spouse Rights, UK
Pension rights cannot be distributed without a court order and also cannot be distributed through a separation agreement. You should keep in mind that you and your dependents may have existing entitlements from both your own arrangement and the arrangement of your husband, civil partner, or qualifying cohabitant.
The court will decide how much of a pension should be shared so that it reflects the length of the relationship and takes into account the overall term of the membership of the scheme .
When the court makes a Pension Sharing Order, it rules that your pension must be split with your ex-spouse, civil partner, and (or) any dependents, such as children under the age of 18.
For instance, if one party has a sizeable pension and the other party has no pension or a more modest pension, the court may order that the other party receive a portion of the larger pension . Additionally, the court may order that a portion of the pension fund be transferred to a personal pension in the name of the receiving party. If there are many private pension plans, the court can share all of them or a larger share one pension. We always recommend a pension actuaries report be obtained as pensions are often a very significant asset of the relationship.
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At Clough & Willis, we have a great deal of experience in dealing with different types of family matters. Our team of specialist solicitors will provide clear, easy-to-understand advice to guide you through what can be a stressful legal process and will work our hardest to get you the best possible outcome for you