Separating? Don't bury your head in the sand...

According to the International Union for Conservation of Nature, the global ostrich population is in decline.  Burying your head in the sand may not be a helpful tactic!

The same is true for couples when they separate.  Relationship breakdown is extremely difficult for all involved.  Emotions can run high, and tension and bitterness are often heightened. As a result there is sometimes an understandable tendency to avoid discussions, or a reluctance to take advice, about some matters which can be far more important than separating couples realise – such as formalising financial arrangements.

Many people are focused on dealing with important practicalities such as who is going to live where, and what is going to happen to the family home. They don’t always look at the big picture.

However, doing that involves considerable risk, and there can be alarming consequences.  It is important that people understand what those risks might be. By taking a non-confrontational approach to resolving the practicalities, the exposure to those risks can be managed. So what are they?

When a couple marry they acquire rights over each other’s property, regardless of who the legal owner is.  If they later separate, each of them can make financial claims over that property, and the right to make those claims continues unless they are dismissed by a court, even if they have already divorced

So, if a couple separated and one of them later won the lottery, their former partner could potentially make a claim for a share of that. A more likely risk, however, is that an ex-spouse makes a claim for maintenance, a share of a pension, or a claim against a house (even if it was bought years after the separation).

A financial agreement made in writing at the time of separation can offer some protection but, if circumstances change, it might not be absolutely binding.  The only way in which a couple can obtain peace of mind is to formalise their separation with a divorce, and obtain an order from the court which sets out the terms of the financial settlement.

Whilst that might sound a scary prospect, it does not have to be.  With the benefit of legal advice, most couples are able to agree matters between themselves.  There is rarely any need to ever attend a court building as, when there is agreement, matters can be dealt with by correspondence. The security that a court-approved financial order gives usually far outweighs any perceived difficulties in obtaining one.

Of course, if the court does get involved, it doesn’t automatically rubber-stamp an agreement. A judge is obliged to consider whether the terms agreed are within the range of options which the law would consider fair.

When working with our clients, we guide them through the relevant legal requirements to ensure that there is a good prospect of the documentation meeting with the judge’s approval.

In our experience, as a minimum, a judge will want to ensure that:

  • The agreement takes into account the needs of any children and, as far as possible, the needs of the separated couple
  • The agreement takes into account all assets held by each person, including property, pensions, shares, business interests, savings and investments – and of course any debts and liabilities
  • Assets generated post-separation are dealt with appropriately
  • If necessary, either party should maintain the other to ensure that income needs can be met.

 

A judge will need to have an overview of the family’s financial circumstances in order to help him or her take a view. Figures will need to be supplied, including any pension ‘cash equivalent’ values.  In contested proceedings regarding finances, there is a strict obligation on both parties to disclose all financial circumstances, supported by documentation. When matters are agreed, the approach taken by a judge is much less stringent.

At Goughs we have significant experience of helping people obtain financial court orders when separating, and when we’re helping our clients achieve finality in this way, we’ll often assist the court by setting out in the paperwork an explanation of the thinking behind a particular settlement, which is often a key factor in gaining the court’s approval in order to finalise the terms of a financial agreement on separation and divorce.   

Furthermore, wherever possible we try to take the emotion out of the process and help couples reach an agreement as amicably as possible. 

So, don’t be an ostrich. Contact a member of our Family team or arrange your free half hour initial consultation today.