Financial Issues

Divorce

You may want to discuss resolving the financial issues directly with your husband or wife. We can give you expert advice and guidance at an early stage on how best to approach the issues and how to deal with any sticking points that may arise during your discussions. Once any problem areas have been identified, we will work with you to find a solution.

We can help you negotiate an agreement with your husband or wife and, if this is not possible, then we can make an application to the court for a decision.

Our aim is to assist you in obtaining finality and certainty concerning the financial aspects of your divorce.

Financial Disclosure

Even if you reach agreement with your husband or wife directly on the terms of settlement, you should be aware that a court will not approve your agreement and make a final binding order in the absence of financial information being provided by you both. Our approach centres on facilitating an early voluntary exchange of financial information (often referred to as financial disclosure).

If a voluntary exchange is not forthcoming, a formal application may be made to the court for a timetable to be set down for when that information must be produced.

Financial disclosure needs to be made so that we can advise you properly on a range of settlement figures, and so that you can then be confident about making or considering settlement proposals. Both you and your husband or wife have a duty to tell each other everything about your financial positions. If either of you withhold or give incorrect information, you run the risk that any agreement or court order can be unravelled by your husband or wife.

In our experience delayed or incomplete disclosure is an obstacle to successful negotiations and ultimately is likely to cause your legal costs to escalate.

When it comes to financial disclosure, short cuts don't work in the long run.

Behaviour

Behaviour during the marriage will not affect how the court divides the assets unless the court feels it would be unfair to ignore it — for example if your husband or wife has gambled away a large proportion of the family assets.

Factors in the Court's Decision

Rather than being restricted to applying a rigid formula, the court has a very wide discretion when it comes to determining property and maintenance issues. When considering possible outcomes, we will have in mind the same factors to which the court will have regard if asked to decide how the assets should be divided.

These factors include earnings and earning capacities, savings, expenditure (both now and in the future), standard of living, ages, length of the marriage, any physical or mental disability, contributions made for the welfare of the family, and any benefits that may be lost by virtue of the divorce, e.g. loss of pension benefits.

Children

Where you have young children, then their welfare will be the court's first consideration. In practice this means that the court will not order a sale of a property and a division of the proceeds between husband and wife if the sale would mean that the children would be left homeless.

Our Approach

We take a proactive direct and positive approach to working with you to resolve any financial issues with your husband or wife.

Our aim is to give you a range of figures within which a court's decision may fall and to negotiate a settlement with your husband or wife wherever that is possible.

Article first published May 2005
Revised August 2006