26 July 2018

Untying the Knot

By Rob Colwell, Head of Family Services, Hayes + Storr.

Over 40% of marriages currently end in divorce, and an increasing number of ‘Silver Separators’ (couples over 60) are ending relationships in later life. It comes as no surprise that according to the Office for National Statistics (ONS) over 100,000 couples every year are asking the courts to formally end their marriage. The inevitable question a client will ask a divorce lawyer is “how much will I be left with?” – but before a lawyer can comment or the courts can agree on what represents a reasonable settlement, both parties are required to make ‘full and frank’ financial disclosure.

Division of Assets

Division of assets are generally based on how long you’ve been married or in a civil partnership, as well as your:

  • Ages and ability to earn
  • Property, money and living expenses
  • Standard of living
  • Role in the marriage or civil partnership, for example if you were the breadwinner or
    primary carer

In the vast majority of cases, assets are split according to need or other statutory criteria, regardless of who’s to blame – and if children are involved, their needs will be prioritised. Long marriages (generally those between 10-14 years+) where children aren’t involved often result in an equal split.

You can have it all

Prior to issuing any applications to the courts, voluntary disclosure of financial documentation often achieves a settlement between the couple and their solicitors. One party may agree to give everything to the other (out of guilt for example) and the couple can arrange this kind of settlement between themselves. However, it is still advisable to get a consent order sealed by the court which can be arranged through solicitors. Otherwise, a claim could be made in the future against the person who keeps the assets.

You can run but you can’t hide

Sometimes there’s a fear that the other side might not disclose their financial details in full or that they’ve been squirreling away finances and hiding assets in anticipation of the break-up. Reassurance is essential at this point. Both parties are required to provide detailed financial documents which are then exchanged with each other. This can include mortgage statements, property valuations, bank statements in respect of the past 12 months for every bank account, ISA’s, pensions, any savings accounts or investments, historical wage slips, business accounts and other evidence of the financial background of both individuals. You may be asked to complete a Form E, a more detailed assessment, to further enable your solicitor to negotiate a ‘fair and reasonable’ financial settlement.

Should it be discovered that one of the parties has hidden wealth at any stage, it can be looked at again by the court – and in some extreme cases can even lead to imprisonment. You can ask for further disclosure if you’re not convinced you’re being told the truth once you have reviewed the other side’s documentation.

Further doubts can involve a forensic investigation of account transactions, and if necessary, a formal application to the court for a direction to disclose. However, because of the costs and time involved court should always be seen as a last resort.

Distributing the assets

Once an agreement is reached, the vast majority of clients will document the agreement in a ‘Consent Order’. Once signed by both parties and sealed by the court, these documents are legally binding. The lawyers will use them to help the clients implement the agreement in the quickest and most cost-effective way. The Order will refer to time limits for distribution or transfers. Failure to comply may result in additional high interest payments.

This article aims to supply general information, but is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

Hayes + Storr Solicitors are regulated by the Solicitors Regulation Authority.

If you’d like more information on any of the issues detailed in this article, please contact Rob on 01328 863231 or email rob.colwell@hayes-storr.com

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