16 Jan 2025

Every year there are over 100,000 divorces granted in England and Wales. In each of these divorces there is a relationship breakdown and financial ties that need to be broken.

When a marriage or civil partnership breaks down, one of the critical aspects to resolve is the financial settlement between the parties. The process of determining how assets and finances will be divided can be complex and often requires the intervention of solicitors the family court.

In the first instance parties are encouraged to attempt to come to a negotiated settlement with each other and without any input from the Court. This can be done through solicitors. Agreements are the recorded in a formal Order (this makes those agreements binding).

The first step in this process is usually to agree to voluntary exchange of financial disclosure. This should, in most cases, be agreed to as if matters do progress to Court a Judge will Order full and frank financial disclosure through a Form E (see below for details). The disclosure can then allow for a picture of the financial situation to be formed which can then lead to making offers in settlement or considering whether an offer made is sensible. A negotiated settlement could come from mediation that the parties have attended.

In order for a Court Application (Form A) to be lodged the parties must have attempted mediation and the mediator must be satisfied that mediation will not be successful or has broken down. The mediator will then provide a MIAMS Certificate. This certificate confirms to the Court that mediation was not possible.

A common misconception about mediation is that a party does not want to be in the same room to face their spouse. A mediation can still go ahead and be successful when parties are in separate rooms. It is the role of the mediator to pass on information and work between the parties to help guide a resolution. It is important to note that a mediator is impartial and independent. But they will help guide each party through the process and ideally create a workable conversation from which a possible agreement can stem.

If matters cannot be resolved through mediation, then a Court may be needed and an application lodged. The factors that must be considered in proceedings are referred to in Section 25 of the Matrimonial Causes Act 1973.

Understanding the principles laid out in Section 25 of the Matrimonial Causes Act 1973 and the stages involved in financial remedy proceedings is essential for anyone going through this process. They are as outlined below:

Section 25 of the Matrimonial Causes Act 1973

1. Welfare of Children: The court will prioritize the welfare of any minor child under 18 years old.
2. Income, Earning Capacity, Property, and Financial Resources: The court will examine the current and future financial resources of each party.
3. Financial Needs, Obligations, and Responsibilities: The court will consider each party’s financial needs and responsibilities.
4. Standard of Living: The standard of living enjoyed by the family before the breakdown of the marriage.
5. Age and Duration of the Marriage: The age of each party and the duration of the marriage.
6. Physical or Mental Disability: Any physical or mental disability of either party
7. Contributions to the Welfare of the Family: Contributions made by each party to the family, including non-financial contributions such as homemaking and caring for children.
8. Conduct: The conduct of each party, but only when it cannot be ignored. It is an extremely high threshold.
9. Benefits Loss: The value to each party of any benefit which they will lose the chance of acquiring due to the divorce (such as pensions).

If you are going through a divorce or want advice about how to deal with things Rubin Lewis O’Brien have a dedicated team of solicitors who can help guide you through the process.

Contact one of the team on 01633 867000 or email contact us here.

Rubin Lewis O’Brien offer a free, no obligation, 20 minute telephone call where you can ask questions and, hopefully, start to understand how to move forward.