Case law, mediation and court hearings in financial settlements on divorce

8th March 2015 by

 

Sadly, there are no hard and fast rules to decide “who gets what” when a married or civil-partnered couple decide to separate. Divorce solicitors and judges will look at each case individually and strive to achieve the best outcome. While a solicitor can advise you on what you might be entitled to, only a judge in a family law court can make the final decision when a couple disputes the appropriate division of marital property.

Pre-nuptial agreements in divorce financial settlements

Even the existence of a pre-nuptial agreement does not necessarily mean that the couple will not have to undergo a court hearing, as family law judges have the power to overrule the contents of a pre-nup if they feel it has not been drawn up correctly. If there has been any sign of coercion, if proper legal advice has not been sought or if the agreement would leave any party to the marriage disadvantaged, then the court can ignore the contents of a pre-nup.

Simplest settlements don’t need to involve the family law court

In most cases, if a couple can agree on arrangements for children, child maintenance and a suitable division of marital property, the divorce will be granted by a judge without the need for the spouses to appear in court.

If there is dispute over children arrangements, the court can ask CAFCASS (Children and Family Court Advisory and Support Service) to assess the situation and make recommendations in the best interests of the children.

If a couple cannot agree how much maintenance that the absent parent will pay, the case will be referred to the CMS (Child Maintenance Service – formerly the Child Support Agency). The CMS will assess the couple’s circumstances, calculate the amount of maintenance required and assist in the collection of payments.

If a couple cannot agree on fair division of assets, then an application will need to be made by one of the spouses (usually the parent with care of the children) for ancillary relief and this is where the court will become more heavily involved. The court will typically require the couple attend  Mediation Information and Assessment Meeting (MIAM) so that they can attempt to reach agreement without going to court.

Every effort will be made to prevent the need for court proceedings in a financial settlement case, but in particularly contentious divorces a hearing may be unavoidable

High-value divorce financial settlements don’t have to be messy

In recent years, many couples have decided to employ a more “round-table” approach when a relationship breaks down and collaborative divorce has become popular. In collaborative divorce the spouses, and their divorce solicitors, make a commitment to negotiate the financial settlement with mutual respect, face-to-face communication; with the ultimate goal of settling the divorce without the intervention of the family law court.

When a court-ordered financial settlement seems unfair

When the family court has made a ruling for ancillary relief, one spouse may feel that the order is unfair. In such a case it is their civil right to apply for a further hearing and their case will be taken to the Court of Appeal where a group of judges will re-examine the case and decide whether the initial ruling was fair.

If appeal court’s ruling is not accepted, by whichever spouse, the case may go the Supreme Court and the decision of this court, the highest in England and Wales, will be seen as final.

Whenever a case goes to court, at whatever level of jurisdiction, the judges will examine it completely on its own merits.  While family law judges will use a certain set of legal precedents to help them make decisions in financial claims, they will attempt to seek the fairest division of wealth between the couple and will consider all factors; including potential future earning ability, levels of wealth prior to the marriage, and wealth amassed during the union.

Healys divorce solicitors in Brighton and London for sound guidance

At Healys we believe the best way to achieve a just and fair ancillary financial settlement on divorce is to ensure clients are fully aware of all the implications relevant in their situation and we achieve that by listening sensitively and offering advice tailored for their individual needs.

Our experienced divorce solicitors in Brighton and London can help negotiate a suitable ancillary relief package by advising on all aspects of the application and all areas of the further negotiations.

If you would like to speak to a divorce solicitor regarding your financial settlement on divorce please call our Brighton office where you can speak directly to Catherine Taylor on 01273 669 124 or e-mail on catherine.taylor@heals.com

Alternatively, contact Jane Sanders on 020 7822 4107 or email jane.sanders@healys.com in our London offices.