Financial Settlements
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When most people think about divorce they think about lengthy and costly arguments in court about money and property. It need not be this way, but it is true that some of the most bitter family disputes are about property on divorce.
When there is a divorce, it is open to either side to make an application for “ancillary relief”. This means an application for an order relating to property or money or even future assets: a financial settlement or financial remedy.
Applications can be made for property to be sold or transferred, for lump sums to be paid, for previous settlements to be changed, for orders taking pensions into account, for maintenance for children and in some cases maintenance for a wife or husband.
When an application is made, the parties are encouraged by the courts to negotiate to reach an agreement if at all possible. Indeed, court applications can often be avoided altogether if couples use collaborative law, mediation or arbitration.
If however, a couple cannot agree, then the decision is ultimately for the Court. Decisions made by judges often do not satisfy either side.
The overriding objective the Court has is to act justly in all the circumstances. In order to do this, the family courts have a great deal of discretion as to what factors they can take into account when making orders. Unlike in much of Europe or some states in America, there are no hard and fast rules for the judge to follow, just general principles which have been refined and interpreted over the years by other judges.
Nowadays the courts start from considering an equal division of assets, but then the judge can use his or her discretion to move away from equality, if the circumstances dictate.
Factors judges take into account are things like the length of the marriage, the age of the parties, when the assets were acquired, whether that was through inheritance or someone’s own efforts, and what contribution each party has made to the marriage in terms of money or money’s worth, such as caring for a home and family. Any agreement before the marriage as to how assets are to be divided on divorce may be taken into account as may conduct after the marriage if it would be unfair not to. Other matters considered are the earning capacities of each spouse, their needs and those of any people they are responsible for caring for, and the standard of living they enjoyed during the marriage.
It is therefore almost impossible to advise anyone as to the likely outcome of an ancillary relief/financial remedy case without detailed knowledge of all the assets and liabilities, and the full circumstances surrounding the family.
If you and your spouse are able to agree financial matters between you, this is likely to save you money in legal fees. However, if your financial circumstances, or those of your spouse are at all complex, or you are not aware of the extent of the assets, then you would be wise to seek legal advice from a fully qualified family lawyer. We at Corbett Le Quesne are experienced in helping people resolve financial matters both by out of court settlements through negotiations through lawyers, collaborative law, mediation and arbitration as well as through the courts. Contact barbara.corbett@corbettlequesne.com or nicholas.lequesne@corbettlequesne.com for further information.
The arrangements for financial settlements for couples who are in civil partnerships are the same as for married couples.
Cohabitees
The law relating to unmarried couples in respect of finances on relationship breakdown is very different from the law relating to married couples or civil partners. Unmarried couples do not have the same rights and responsibilities as people who are married. Therefore if assets are not in joint names, there is no responsibility on one partner to give anything to the other or to pay maintenance. The exception to this is where there are dependent children. In those cases applications can be made under Schedule 1 of the Children (Jersey) Law 2002 for a settlement for the benefit of the children. This can include the provision of accommodation, a lump sum payment and maintenance.