Following the introduction of the no-fault divorce legislation on 6 April 2022 there is increasing concern that even though the divorce process itself should be less acrimonious, divorcing couples might overlook the need to obtain a legally binding financial settlement to avoid future arguments and litigation, possibly many years after the divorce itself.
This can be a very straightforward matter if the parties are able to reach an agreement on the financial needs of the family and division of capital. In this case, all that is required is for the parties to put the terms of their agreement into the form of a Court Order made by consent. Provided the Court is satisfied with the terms of the settlement, an order will be made in those terms without the need for the parties to attend Court.
To resolve matters by agreement is always the best way, but even then it is important for both parties to obtain professional legal advice before they agree a financial settlement to ensure that they are receiving their fair share of the matrimonial assets (including the matrimonial home and pensions) and that the settlement would adequately meet the needs of both parties and especially the needs of the children.
If matters cannot be agreed, whether through mediation or negotiation, the matter would ultimately have to go before a District Judge of the Family Court for a decision. The Judge will have some discretion on the appropriate outcome but the Judge must have regard to Section 25 of the Matrimonial Causes Act which lists the factors which must be taken into account; but priority is always given to the welfare of any children under the age of 18. The conduct of the parties is not relevant unless it would be totally unfair to disregard it.
So the moral of this article is that even though the divorce law has changed, the law in relation to divorce settlements has not. Divorcing couples should seek independent legal advice to ensure they get the best financial settlement for each of them and their children in their particular life stages and circumstances.
For further information, or to take advantage of a free half hour meeting on this subject, please email Sam Ellis or Tim Owers or call on 01394 279636.
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