If the parties to a divorce cannot agree a financial settlement, then they will usually of course ask the court to decide the matter for them, by applying for a financial remedies order.

Obviously the court will require full details of the parties’ circumstances and financial affairs, before it can make a decision. This will include the disclosure of the most personal and sensitive information, material that most people would not want to end up in the public domain.

However, court judgments in financial remedy cases on divorce may be published, especially if the cases are heard in the higher courts, for example where they are more complex, or where there is an appeal.

Until recently, this was more often than not not a problem for those wishing to keep their affairs private, as most judgments were anonymised at the request of the parties, removing their names before they were published.

All that may have now changed.

Last November High Court judge Mr Justice Mostyn, who hears many financial remedy cases, announced that in future his ‘default position’ would be to publish financial remedy judgments in full without anonymisation, save that any children would continue to be granted anonymity. He made it clear that there would have to be a good specific reason to depart from this ‘rule’.

And Mr Justice Mostyn’s approach has recently been approved by Sir James Munby, the former President of the Family Division.

Sir James has said that there is no convincing objection to Mr Justice Mostyn’s default position. He explained that many types of litigation involve private and sensitive matters but were not anonymised – the right to privacy in a financial remedy case was not qualitatively different from that of the parties in, say, a family dispute about the ownership of a company or the distribution of an estate.

Mr Justice Mostyn’s position is not yet a firm rule that must be followed by all judges, and it is not universally supported amongst family lawyers, but it does now seem possible that it may become the norm.

So how do you ensure that your financial remedies case is kept private? The answer is to avoid going to court in the first place. The best way to do this of course is to agree matters with your (former) spouse.

And if you can’t agree matters then you could consider going to arbitration, whereby a trained arbitrator will decide the case for you, completely in private. Note, however, that not all cases are suitable for arbitration – your lawyer will be able to advise you as to whether your case is suitable.

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Back in January we reported here about a survey carried out by the consumer magazine Which?, that found that only 15% of divorcing couples include pensions in their financial settlement, and that 58% of the people they surveyed said pensions weren’t even discussed within their divorce proceedings.

Now another survey has made similar worrying findings, suggesting that many people are missing out on their pension entitlement when they get divorced.

The survey, carried out on behalf of the insurance company Aviva, found that one in six divorced people said they did not realise their pension could be affected by splitting up, and that more than a third said they made no claim on their former partner’s pension.

The survey, of more than 1,000 divorced people, also found that 8% of divorcees do not have their own pension savings, having been relying on their partner to finance their retirement. As a result of divorce, 19% say they will be, or are, significantly worse off in retirement.

Commenting upon the survey, the head of savings and retirement at Aviva said:

“It’s critical that, as part of the separation process, couples take time to think about and discuss one of their single most valuable assets – their pension.

“It’s common that one party will have significant pension provision, and the other party may have little or none. Clearly, this could be a relevant factor in any divorce.”

Invisible asset

So why are people missing out on their pension entitlement?

Perhaps the single biggest reason is that a pension is an ‘invisible asset’. Unlike the former matrimonial home, the existence and value of which is obvious, pensions cannot be seen. They exist only ‘on paper’, and often one spouse will have little, or even no, knowledge of the other spouse’s pension.

Another problem with pensions is that people often have no idea of their true value, often underestimating their worth by a huge amount. But pensions can be very valuable, and can easily be worth hundreds of thousands of pounds, making them usually the second most valuable asset on divorce, after the matrimonial home.

So as we stated in our previous post, it is absolutely essential that you take proper expert legal and financial advice upon your possible entitlement to a share of your spouse’s pension. We can find you an expert lawyer that works with you on our digital platform, and can also find you a financial expert to advise you. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A quite extraordinary judgment has once again highlighted the folly of parties to family court proceedings pursuing their case with such ferocity that they run up vast sums in legal costs.

The case concerned a couple who have incurred the incredible sum of £5,401,503 in legal costs, in just 18 months of litigation concerning their children and their divorce.

And that is not the end of the story. The case is continuing and it has been estimated that the total costs may be as much as £8 million by the time it is finished.

The judge dealing with the case said that to run up such costs was “apocalyptic”.

Needless to say, such costs can seriously deplete, or even extinguish, the assets available for the parties in the future.

Now, obviously most people do not have such sums available to them to spend on legal costs. However, the case does still act as yet another reminder that anyone involved in family litigation should do all they can to keep their costs to a minimum.

But how can this be done?

Perhaps the first and most important point is to try to keep any animosity out of the proceedings.

Obviously, when a marriage breaks down feelings can run very high, with each party seeking to take out those feelings on the other party, within the court proceedings.

But such behaviour is inevitably destructive. There is nothing to be gained by it, and much to lose. The court simply isn’t interested in ‘points scoring’ – it is only interested in finding the best possible outcome to the case.

Difficult as it may well be, every effort should be made to keep animosity at the door of the court.

The second thing is to be realistic about what you are seeking from the proceedings. Many may, for example, want to prevent the other party from having contact with their children, when it is quite obvious that the court will expect contact to take place. And in the realm of financial proceedings, taking the other party ‘for every penny’ is simply not going to happen.

The answer is to take expert legal advice as to what the best outcome of the proceedings is likely to be, and to follow that advice. An expert family lawyer will not advise you to seek an outcome that is simply never going to happen.

The last thing is the most obvious: do everything you can to avoid going to court at all!

The very best way to avoid running up large sums in legal costs is of course to agree matters, rather than go through contested court proceedings.

This first of all requires the parties to adopt a constructive approach to the case, rather than an adversarial one, avoiding conflict wherever possible. Such an approach will help to put in place the conditions under which an amicable resolution of the matter is far more likely.

As to exactly how matters may be agreed out of court, there are several options. The most common way is for agreement to be reached via negotiation between the parties’ lawyers. Another possibility is to go to mediation, whereby a trained mediator will try to help the parties resolve their dispute by agreement.

In short, it should be possible in all cases to avoid running up exorbitant legal costs. Most cases are, in fact, agreed out of court. And even where contested court proceedings simply can’t be avoided, it is still possible to keep the costs to a minimum.

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The new no-fault divorce system means that for many people getting divorced will now be easier, as it will no longer be necessary for the applicant to prove that their spouse is responsible for the breakdown of the marriage.

But this has led to warnings in some quarters that easier divorce can mean that respondents may be rushed into agreeing an unfavourable divorce settlement. Is this really the case?

It is true that under the old system the respondent could seek to slow down the divorce by defending it, and that this option is no longer available, as a divorce under the new system cannot be defended.

But this does not mean that respondents will be rushed into settlements.

For a start the new system has an in-built twenty-week ‘period of reflection’ between the start of the proceedings and the application for the conditional divorce order (the equivalent of the decree nisi under the old system). This means that, with the six-week period between the conditional order and the final order, divorces now will take a minimum of six months, which is actually longer than many divorces took under the old system.

And in addition there is actually a way in which respondents can seek to delay the divorce until the financial settlement has been dealt with.

Before we explain this we should explain that it is not a requirement that a financial settlement must be reached before a divorce is finalised. It is quite possible for the settlement to be dealt with after the divorce.

However, this is not generally recommended, because it is possible that getting divorced can adversely affect a person’s financial position. For example, it could mean them losing a potential benefit under their spouse’s pension.

A pension scheme will often provide that if the pension holder dies then their spouse should benefit from the pension, but that benefit will obviously be lost if they are no longer the pension holder’s spouse.

The way that the respondent can seek to delay the divorce is by applying to the court for it not to allow the divorce to be made final until it has considered their financial position as it will be after the divorce.

The court will then not make the divorce order final unless it is satisfied either that the applicant should not be required to make any financial provision for the respondent, or that the financial provision made by the applicant for the respondent is reasonable and fair, or the best that can be made in the circumstances.

In short, the new divorce system should not mean that respondents are rushed into unfavourable settlements. In most cases they should have time to sort out financial arrangements, and if there is a risk that they may be seriously disadvantaged, they can ask the court to delay the divorce until finances have been resolved.

Time may not be of the essence when it comes to financial settlements, but if you have received a divorce application issued by your spouse, you should still seek the advice of an expert family lawyer, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It is not unusual for couples, especially those with substantial means, to enter into a ‘marital agreement’, setting out what should happen to their finances in the event that they should divorce. Such agreements may be ‘pre-nuptial’, i.e. entered into before the marriage, or ‘post-nuptial’, i.e. entered into after the marriage.

But such agreements do not bind the courts of England and Wales. When a divorce occurs the court may order whatever financial settlement it considers appropriate, and this may not be the same as the settlement set out in the agreement.

So what is the legal status of such agreements, and what effect, if any, do they have on the outcome of a financial remedies application on divorce?

Last week a High Court judge considered these questions, and also the associated question of how the court should view an agreement that was reached, but not signed by the wife. His judgment, which set out the law, is instructive for anyone having, or considering entering into, a marital agreement.

So what is the law?

The first thing to say is that the court essentially treats pre- and post- nuptial agreements the same. The only difference relates to the circumstances surrounding the making of the agreement.

In both cases the parties must make full disclosure of their means and take legal advice before entering into the agreement. However, in the case of pre-nuptial agreements there is an extra requirement: that the agreement is entered into a reasonable time before the marriage (say, 28 days), to reduce the possibility of one party being pressured into signing the agreement.

If an agreement has been made then the court hearing any subsequent financial remedies application will take the agreement into account when deciding the application, and will give effect to it provided that:

1. It was been freely entered into by both parties, without any undue pressure being put on them;

2. Each party fully understood the implications of the agreement; and

3. It would not be unfair to the parties to hold them to the agreement, in the light of the circumstances prevailing when the court makes its decision.

The effect of this is that the court is likely to give effect to the agreement in most cases.

As mentioned, the agreement must be in the form of a written document, signed by both parties. But what if one party does not sign it? Should the court still give effect to it?

This was the particular situation with which the judge was faced. The parties had agreed a post-nuptial settlement, after taking legal advice. The settlement was set out in a written agreement, but in the event the wife did not sign it. Should the judge hearing the financial remedies claim give effect to it?

The agreement specifically stated that it would only come into effect when both parties had signed it, and its preamble contained the usual notice warning the parties not to sign it unless they intended to be bound by its terms.

In these circumstances the judge held that the wife should not be bound by the agreement. However, the fact that she had agreed to its terms was a matter that he should take into account. Accordingly, he made an order that was similar to, although not the same as, the terms of the agreement.

If you are considering entering into a pre- or post- nuptial agreement then, as indicated above, you will need the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Very often when a marriage breaks down one spouse will cut off financial support from the other, leaving the less well-off spouse in a perilous financial position.

Obviously, a financial settlement will be obtained in the subsequent divorce proceedings, but this could take many months. How does the less well-off spouse manage in the meantime?

The answer is that they can apply to the court for maintenance pending suit.

As the name suggests, a maintenance pending suit order requires one spouse to pay maintenance to the other for the duration of the divorce proceedings, i.e. until a final financial settlement is ordered.

A maintenance pending suit order can be made at any time after divorce proceedings have been issued.

By its nature a maintenance pending suit application is urgent, and therefore the court considering the application will not go into great detail regarding the means of the parties. Instead, it will adopt a broad-brush approach, concentrating upon the applicant’s immediate needs and the respondent’s readily available income and resources.

The applicant’s needs do not include their legal costs for the proceedings, but the applicant can make a separate application for an order that the respondent contribute towards their costs.

The court will try to make an order that it considers to be fair, and a very important factor in determining fairness will be the standard of living enjoyed by the parties during the marriage.

Both parties will be required to make full disclosure of their means, and if the respondent fails to do so then the court is entitled to make ‘robust assumptions’ about their ability to pay. 

If it later becomes clear that the maintenance pending suit order was too high or too low, then an appropriate adjustment can be made in any final financial remedy order.

As indicated above, a maintenance pending suit order comes to an end when the divorce is finalised. However, if the court considers that the maintenance should continue after the divorce, then it can convert the order into an interim maintenance order, which will last until such time as the court makes a final financial remedies order.

If you need to apply for a maintenance pending suit order you should seek the advice of an expert family lawyer, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week the consumer magazine Which? reported the result of a survey its members carried out, that found that only 15% of divorcing couples include pensions in their financial settlement, and that 58% of the people they surveyed said pensions weren’t even discussed within their divorce proceedings.

The findings have been met with some surprise within the family law community. Certainly, family lawyers should always advise their clients of the importance of including pensions in divorce settlements. Pensions are one of the most valuable assets in many divorces, and anyone entering into a settlement that doesn’t take them into account could be missing out very significantly.

Whether or not the findings indicate the true picture nationwide, they do seem to show that more needs to be done to ensure that those going through a divorce are aware of the importance of pensions, and of their possible entitlement in relation to them.

In particular they should ensure that before they enter into any divorce settlement they first require their spouse to make full disclosure of the value of all of their financial assets, including pensions.

Pensions are usually valued by reference to their ‘cash equivalent transfer value’, being the amount that could be transferred from the pension into another pension fund. To give an idea of the possible value of pensions, it is not at all unusual for a pension to have a transfer value running into several hundred thousand pounds.

Pensions can be dealt with on divorce in one of three ways: by an ‘offsetting’ arrangement, whereby the party holding the pension keeps it, but the other party receives more of the other assets to compensate them; by a pension attachment order, which states that one party will receive part of the other party’s pension, when the other party receives it; or, most commonly, by a pension sharing order, which transfers all or part of one party’s pension into a pension belonging to the other party.

It is absolutely essential that you take proper expert legal and financial advice upon which of these arrangements is best for you, and how exactly to implement it. We can find you an expert lawyer that works with you on our digital platform, and can also find you a financial expert to advise you. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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If you have acquired assets completely independently of your spouse, for example assets owned by you prior to the marriage, then it may seem unfair to you that your spouse should share in those assets when it comes to divorce.

In such a case you should be aware of the principle of ‘matrimonial property’.

Essentially, the principle says that, subject to the exception we will mention in a moment, only ‘matrimonial property’ should go into the pot for division between yourself and your spouse on divorce.

So what is ‘matrimonial property’? The term refers to assets acquired during the marriage, through the joint efforts of the parties to the marriage. Accordingly, anything that was acquired by one of the parties before the marriage is not ‘matrimonial property’. (Similarly inheritances, gifts to one party and assets acquired after the separation are considered to be ‘non-matrimonial’).

The exception to the rule that only matrimonial property is divided between the parties is that where the matrimonial property is not sufficient to meet the financial needs of the parties then non-matrimonial property may be used to meet those needs.

The principle of matrimonial property arises quite frequently. A recent example demonstrates it being argued by a husband, in a Family Court case last October.

In the case the husband acquired an interest in a family business prior to the marriage. He therefore argued that the value of his interest in the business at the time of the marriage was not ‘matrimonial property’, and therefore should remain his property (the exception to the rule above did not apply, as the ‘matrimonial property’ in the case was more than sufficient to meet the parties’ needs).

The wife, however, claimed that the business had been ‘matrimonialised’ over the course of the marriage, and should therefore be divided equally, along with the other assets.

The judge agreed with the wife. A particular reason for this was that in 2016 the husband restructured the business, leaving him and the wife with equal shareholdings in part of the business, with the balance belonging to the children. This effectively meant that the husband acknowledged that his interest in the business was not worth more than the wife’s.

Accordingly, the judge ordered that the parties should share all property equally.

If you wish to argue that certain property is or is not ‘matrimonial’ you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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If you are involved in family court proceedings of any sort the chances are that at some point in the proceedings you will be required to prepare a written statement in support of your case.

Obviously, a statement is an important document. It sets out the evidence that you intend to rely on and, as such, will have a huge bearing upon the outcome of the case.

But there are right and wrong ways to prepare a statement, and it is essential that your statement is prepared the right way.

Last week the President of the Family Division published a memorandum setting out how such statements should be prepared. The memorandum was aimed at lawyers preparing statements for their clients, but much of what it contains could equally apply to the person actually making the statement.

The President began by explaining what a statement should and should not contain.

Amongst the things that a statement should not do is seek to argue the case, and set out opinions of the person making the statement. These are common errors in many statements.

The only things that a statement should contain are matters of fact, and matters of information and belief.

Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen).

However, and this is another issue with many statements, a statement may state only those matters of fact of which the person making the statement has personal knowledge, and which are relevant to the case. All too often statements contain facts of which the person does not have knowledge, and facts that are simply irrelevant

Further, the statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about the financial needs of a party, will be matters of information and belief. Accordingly, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

The other big lesson that everyone making a statement should take from the President’s memorandum is that a statement must be as concise as possible, whilst not omitting anything of significance.

It is easy to think that the longer the statement, the better it is for your case. This is not true – the judge will not want to read through a long statement, much of which is likely to be irrelevant. As a general standard, said the President, a witness statement should not exceed 15 pages in length (and very often it does not need to be nearly as long as that).

A statement is an important part of preparing a case. It therefore needs to be done properly, preferably with the help of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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‘Financial remedy’ is a term used to describe various types of family law court applications concerning money or property. The most common type of financial remedy application is made in connection with divorce proceedings, but they are made in other situations as well.

Whatever the situation, the court will require both parties to provide relevant details of their means, so that it can decide the case. This is achieved by the parties completing a financial statement, known as a ‘Form E’, and sending copies to the court and the other party.

But there are different types of Form E, depending upon the type of application. These are designated Form E, Form E1 and Form E2.

So which one should you use?

As mentioned, the most common type of financial remedy application is in connection with divorce proceedings. For this, you should use the ‘original’ Form E, which is the most comprehensive of the three forms.

This Form E is also used in financial remedy applications on civil partnership dissolution, judicial separation, annulment and applications for financial relief after an overseas divorce.

But in some financial remedy situations the court does not need to have all of the information required by the original Form E.

This is where Form E1 comes in. Form E1 is used for all other types of financial remedy application, for example an application for financial provision for a child, usually made by a parent who was not married to the other parent.

Which leaves us with Form E2. Form E2 is used on an application to vary a financial remedy order. The most common situation here is where there is a spousal maintenance order, and one spouse wishes to increase or decrease the amount of the maintenance. Form E2 is the shortest of the three forms, as the court only requires limited information to decide the application.

You can find some tips on completing a Form E in this post, although as stated there you should really seek the assistance of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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When a husband and wife cannot agree a financial settlement on divorce one of them will make a financial remedies application to the court, asking the court to decide the matter.

Obviously, the court cannot decide what would be an appropriate settlement without full details of both parties’ means. The parties are therefore required to complete a financial statement, setting out details of their income, outgoings and assets. The statement is known as a ‘Form E’.

The parties must exchange copies of the Form E and file it with the court on a date set by the court, which will be not less than 35 days before the First Directions Appointment.

The Form E can be quite a daunting document, so here are six tips to help you complete it.

1. Read through the whole form before you begin completing it, paying particular attention to the notes on the form, especially the warning on the front page that you have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances.

2. Once you have been through the form you will know what information you will need to complete it. Gather together all of the required information before completing the form. Adding information later may require amending the form in more than one place.

3. Similarly, the form requires you to produce various documents, as set out in the schedule at the end of form. Gather those documents together before completing the form (you may need to request certain documents, such as pension valuations). If you are not able to obtain any documents in time for filing the form with the court, tick the ‘To follow’ box on the schedule.

4. When completing the form don’t be tempted to miss items out, or to undervalue items – doing so could lead to you incurring further costs down the line, and could even lead to any final order that the court makes being set aside.

5. Perhaps the most important part of the form is section 5, in which you tell the court what order you are seeking, if you are able to do so (you may not be able to do so, as you may not be sufficiently aware of other party’s means). Whatever you say here will obviously have a bearing upon any final order that the court may make, so you should really seek advice before completing this section. Which leads us to…

6. Lastly, take legal advice! Form E is perhaps the most important document in a financial remedies application. It may, in theory at least, be designed for completion by a layperson, but it really needs the input of an expert lawyer, in all but the simplest of cases. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week we began looking at the procedure that the court follows on an application for a financial remedies order. Specifically, we looked at the First Directions Appointment, or ‘FDA’.

We now turn to the next stage in the procedure: the Financial Dispute Resolution appointment, or ‘FDR’, at which both parties (and their lawyers, if they are legally represented) must attend.

The basic idea of the FDR is to see if the case (or even just part of it) can be settled by agreement without having to be decided by the court, thereby saving time and costs.

The FDR is before a district judge, but they will not decide the case, or force a party to agree to a settlement – their task is to try to help the parties reach an agreement.

One way the judge may try to encourage settlement is by giving an indication of how the court is likely to decide the case if no agreement is reached. Making the parties aware of which way the case is likely to go should prompt reasonable negotiation.

The parties themselves have an obligation to “use their best endeavours to reach agreement on matters in issue between them.” They will do this by putting forward, and responding to, settlement offers.

Note that any settlement offer made at an FDR cannot subsequently be relied upon by the other party, unless they are re-stated in open correspondence after the FDR.

If a full agreement can be reached at the FDR (and most cases are agreed at or before the FDR) then the district judge will ask the parties to draw up a consent court order, setting out the terms of the agreement, for approval.

If no full agreement can be reached at the FDR then the district judge will give directions as to how the case should continue, for example by fixing a date for a final hearing, at which the court will hear all the evidence, and make a final decision on the case.

It should be noted that if the case does proceed beyond the FDR the district judge who conducted the FDR will take no further part in proceedings. This avoids any suggestion later in the proceedings that he or she has ‘pre-judged’ the case, and enables the parties to make proposals freely at the FDR, knowing that the judge who decides the case will not have heard them.

The FDR is a crucial step in the process of a financial remedies application, at which the outcome of the case can be decided. It is therefore essential that anyone required to attend an FDR first seeks expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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