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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.

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Financial Proceedings

  • D L
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11 Aug 09 #137898 by D L
Topic started by D L
Financial proceedings can only be commenced when there are proceedings for either divorce; nullity (an annulment) or judicial separation underway. They are referred to as “ancillary relief proceedings”. You commence proceedings by way of a Form A, which you will find, complete with instructions on how to fill it out, in the site library. There is nothing to prevent you filing your Form A with your divorce petition should you wish, especially if you require maintenance pending suit (MPS). If you do not have a requirement for MPS, or have agreed a figure for MPS with your spouse, you should hold off commencing financial proceedings and give either mediation and/or negotiation (either between yourselves or via lawyers) a try first.

The orders are not mutually exclusive; the court can use the full range of orders in any one case, save for an order for maintenance pending suit, which is an interim order and stands alone until the final determination of the case.

While reference is made heavily to the court here, you can make an agreement between you and have that agreement made into a Consent Order; it is not necessary to engage in proceedings to finalise the finances between you. In fact on the latest figures available less than 5% of all financial proceedings issued ended in an order decided by the court; in the other 95% of cases there was a consent order made following agreement between the parties.

Of that 95% some had commenced proceedings and reached agreement along the way; the remainder had simply reached agreement and requested the court make an order as a paperwork exercise.

If you fall into the remainder who manage to settle by agreement without having issued any proceedings, the procedure to have that agreement made into a court order is firstly to have the agreement drafted into an order. I strongly suggest you have a lawyer do this for you due to the complex terminology that is required. The cheapest method is to use one of the online consent order services available, who will undertake the drafting for well below £200. These services will not advise you about the fairness of the order however, they are merely a drafting service.

Once drafted the consent order is sent to court with a Form A for dismissal purposes and the court fee of £210, along with a form D81, which you complete together with your spouse. The D81 is a short form of financial disclosure, which enables the judge to see the global assets and assess the order against them. A District Judge will then consider if in all the circumstances the order is fair to both parties. If one or both parties are unrepresented and/or if the order is weighted towards one party, the judge can call you in for a short 10 minute hearing just to satisfy him or herself that you both understand the nature of the order and are indeed happy with it. There is no requirement to be represented at this hearing, which will be very informal.

If you reach agreement sometime during the proceedings, when you did so determines the procedure for having that agreement made into an order. If you agree at a hearing the order is usually drafted there and then and presented to the judge for approval (if you are both representing yourselves the judge will draft it for you; if one of you is represented it falls to the lawyer to do it). The court will then send you a copy of the order soon after. If one party is represented it is not unusual for the judge to request that the representative draft the order and send it to court later for approval, particularly if it is late in the day. This will not happen if you are both self representing.

If you reach agreement during proceedings but not at a hearing that agreement is written up as a consent order and sent to court for approval with a fee of £40 once you have both signed it.

However your order is made, there can not be a financial order (except for one for MPS) until there is a Decree Nisi, and the order comes into effect on Decree Absolute. One important consideration when negotiating the terms of an order is to bear in mind the dates. If the timeframe for application for decree absolute has passed and your order is expressed that say a lump sum is to be paid 28 days after grant of the absolute, you need to consider if that is viable in that it gives you enough time to raise any required finance, given that in effect you may be limiting yourself in those circumstances to payment within a few weeks if the applicant straight away applies for the absolute (which is usual).
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