Most people will want to resolve the finances of their marriage by consent if that is possible, and there are a number of ways in which you can do this. This blog is to summarise some of those options.
You will see that the options considered here, which are not the only ones, all include full and frank disclosure. Full and frank disclosure is a "cards on the table" type exercise, and is an important step to reaching a fair financial settlement. The courts have a general principle that before entering into an agreement, you should know what you are agreeing to. For example, if you agree that you are not going to claim against each other's pensions, but one pension is worth £500,000 and the other £30,000, but you do not know this, then the court may well be reluctant to hold you to an agreement where you did not know all the facts.
In fact there is no avoiding some form of disclosure, because even once you have a draft agreement, it is not binding until it is stamped by the court. When it is sent to the court it MUST be accompanied by a D81 form which you can find here. The D81 is a summary of finances now and after the order is implemented, and the court will not stamp an order without this.
Some people will baulk at the idea of laying their finances bare to their spouse, especially if they have been separated a while, but it is an essential step in some shape or form.
So, what are some of the options?
Mediation: this is, in many cases, an excellent option. This involves the parties selecting and engaging a qualified family law mediator. Many mediators are trained lawyers, and some have other backgrounds. A family mediator could be found here or I will often have suggestions, depending on the area.
I usually suggest that a client obtains advice in advance of, and during the process, from a lawyer who acts for them. The mediator will be neutral and although they can provide general advice, they will not be giving you specific advice tailored to you.
The usual mediation process will include:
An initial chat or meeting on your own with the mediator, during which if you have any concerns, including about domestic abuse, these can be addressed. Arrangements can usually be made for different ways to mediate if that is thought helpful, such as remotely, or by shuttle. Shuttle means where you and your former spouse are in separate rooms, and the mediator shuttles between the two.
Full and frank disclosure. This is often dealt with by both parties completing a Form E, which you can find here. Questions can be asked, and you can ask your lawyer, if you wish, to assist with the disclosure, or advise on questions to ask by reviewing the other person's disclosure.
Expert reports. You might need valuation reports (eg property or business), a pension report, a tax report or another type of report, to be sure of the values in your case.
Once disclosure is completed, the mediator will likely draw up an Open Financial Statement. which will set out all of the assets and income in summary form. This is "open" because it could later be referred to in court. These figures will form the basis for negotiations.
Negotiations. This is when proposals for settlement are discussed, and the mediator will often assist you with considering how this will leave you both financially in the future, to check whether an option is viable or not. They key thing to note is that the mediator cannot and will not decide the outcome for you. They will however facilitate and assist discussions between you to try to achieve this.
Outcome. If you reach an agreement, the mediator will prepare a document called a "Memorandum of Understanding". This is a "without prejudice" document, because at this point it is NOT legally binding. You give this document to your lawyer.
Legally binding. Either your lawyer or your spouse's lawyer will prepare a Draft Financial Remedies Consent Order, and the other supporting documents including the D81 mentioned above. Ideally both you and your spouse will obtain legal advice on the draft order, to ensure it says what you believe it says and that you have fully understood the consequences of your agreement. Once everything is finalised and signed, the draft order and other documents are sent to court, where it will be placed before a Judge who will decide whether or not to approve it. It might be rejected if it is outside of the range of fairness for one party, but the vast majority of orders are approved, and if it is looking unfair the likelihood is that your lawyer will have pre-warned you of this.
Implementation. Assuming the draft order is approved, it is then a case of implementing, which might include conveyancing, pension transfers, and so on.
Voluntary process through lawyer(s): sometimes people do not wish to attend mediation, and would prefer to deal with everything through lawyers. Again this will involve a similar process of disclosure as above.
This will usually involve:
One party's lawyer will propose that there be a voluntary exchange of financial information, and a possible timescale for this.
Full and frank disclosure. This is often dealt with by both parties completing a Form E, which you can find here. Questions can be asked, afterwards, about the Form E or documents or possible missing information.
Expert reports. You might need valuation reports (eg property or business), a pension report, a tax report or another type of report, to be sure of the values in your case.
Negotiations. Often this will involve your lawyer advising you, and sending letters setting out proposals. Sometimes there can be telephone calls or round table discussions to achieve this. Hopefully you will reach an agreement.
Legally binding. If you reach an agreement either your lawyer or your spouse's lawyer will prepare a Draft Financial Remedies Consent Order, and the other supporting documents. Ideally both you and your spouse will obtain legal advice on the draft order, to ensure it says what you believe it says and that you have fully understood the consequences of your agreement. Once everything is finalised and signed, the draft order and other documents are sent to court, where it will be placed before a Judge who will decide whether or not to approve it. It might be rejected if it is outside of the range of fairness for one party, but the vast majority of orders are approved, and if it is looking unfair the likelihood is that your lawyer will have pre-warned you of this.
Implementation. Assuming the draft order is approved, it is then a case of implementing, which might include conveyancing, pension transfers, and so on.
Arbitration: This has its own article which can be found here, and again follows a process of disclosure with directions from the chosen Arbitrator, but the difference is that at the end, if you have not reached agreement along the way, the Arbitrator will make the decision by making an Award.
You can start in arbitration from the outset if you believe it might be difficult for you and your spouse to reach an agreement, or you can appoint an Arbitrator to decide certain points after another route has not reached agreement or there are some disputed points.
DIY: You can of course reach an agreement yourselves, and then bring it to a lawyer to draft a Consent order to make it legally binding. However, this may carry a risk that you do not know all the financial circumstances or points which you ought to be considering, or you might be agreeing something that is not in your best interests. If you do reach such an agreement, you still must complete the D81 to accompany it when it is uploaded to court to be considered by a Judge.
Which one? Your lawyer can assist with identifying which process is right for you. I have on occasion had cases finish mediation, without agreement, but then reached a swift agreement in correspondence soon afterwards. I had a case go through a voluntary process through solicitors where I telephoned the other lawyer and we had agreed that if for any reason we did not reach a final agreement, we would pass the case to an Arbitrator to make an Award. The point is if one is not working, others can still be considered, with court avoidable in most cases.
There are other options, but the above are the ones I use the most. All are infinitely better than court in the vast majority of cases. My view always remains that court is a last resort. However, all of the above are VOLUNTARY, so if one party will not agree a voluntary process, currently they cannot be forced (recent government proposals might change this in the future). In my opinion court is only necessary in a very small minority of cases, and such case might include:
where one party refuses to engage in any process to reach an agreement.
where one party is concealing disclosure or not providing any voluntarily.
where one party's expectations of settlement are way outside the range of fairness and sensible negotiations are proving futile.
where bankruptcy might be looming.
Most people do not genuinely want to go to court, so these cases should be the exception.
Please do get in touch here if you'd like to talk about your situation.
Comments