This is one particular aspect of divorce or separation which can cause not only significant conflict but also substantial legal costs. It is invariably in the interests of the parties to resolve these issues amicably by agreement and it is our policy to advocate a conciliatory approach in so far as that is possible. As a means to that end we frequently refer clients to mediation. PRE-NUPTIAL AGREEMENTS Whilst not necessarily binding under current English law, pre-nuptial agreements are increasingly being recognised in the divorce courts when judges have to determine what evidential weight ought to be attributed to them when considering the intentions of the parties in relation to matrimonial and other assets at the outset of the marriage. We can draw up a pre-nuptial agreement to incorporate the terms agreed between the prospective parties. Following a number of recent high profile court cases the consensus of legal opinion is that such pre-nuptial agreements may well be treated as binding upon the parties in the not too distant future. Therefore it could be a prudent course of action to seek our advice on entering into such an arrangement before marriage.

MAINTENANCE We can advise upon the entitlement of one spouse to receive spousal maintenance in the form of periodical payments from the other as opposed to maintenance for children which is dealt with separately under the Children section. The amount of maintenance will be determined by the income and other financial resources of the parties and what they need to live on. It is necessary now in every case to consider whether it is appropriate for maintenance to be paid at all or whether there should be a clean break between the parties, in other words, whether the recipient of maintenance should continue to be financially dependant on the other spouse and if it is possible for that spouse to continue without financial support, then the case should be resolved on that basis. Depending on the particular circumstances, it is possible for the recipient spouse to receive maintenance during the joint lives of the parties. It is possible that the recipient may be entitled to maintenance only for a shorter, transitional period, the purpose being for him or her to become accustomed to coping financially on his or her own. We can advise upon whether maintenance is appropriate, the amount and how long it should last. Should the wife remarry any entitlement to maintenance ceases automatically by law.

DIVISION OF ASSETS & PROPERTY Every effort should be made by the parties to reach agreement with regard to maintenance and how the property and other assets should be divided. We can advise you and help you to negotiate, or alternatively refer you to Mediation to facilitate negotiations and agreement. If agreement is reached, we can advise as to the incorporation of the terms agreed into a Deed of Separation or into an Order that can be made by the court on the basis of the parties’ consent. Except in very rare circumstances, you will not be required to attend court. If no agreement can be reached, then applications can be made to the court for maintenance, lump sums, property adjustment orders and orders in relation to pensions. The court throughout the process does all it can to persuade the parties of the wisdom of trying to resolve the issues by agreement. The court process requires the parties to make full disclosure of their respective financial circumstances. In other words, each party is required to provide detailed information as to the value of their property and other assets, income and liabilities and to identify their financial needs; in particular, the need to be adequately re-housed. Once disclosure has been made, court hearings follow, in particular a Financial Dispute Resolution appointment at which the court is concerned to explore with the parties a basis of settlement. If an agreement sill cannot be reached, a final court hearing will take place at which the court will decide what is a fair division of the assets. In determining the issues, the court is required to take into account all the circumstances and to make the welfare of any children its top priority.

A number of orders can be made by the court in relation to property, including the following: A sale of the property, which will entail the division of the net proceeds of sale between the parties. The proceeds will be divided in such a way as to ensure so far as possible that both parties are adequately accommodated. A transfer of the property from the joint names of the spouses into the sole name of one of them. This may require the party to whom the property is transferred to pay a lump sum of money to the other. A deferred sale of the property, which means that the property will only be sold when it ceases to provide a home for the spouse and any infant children of the marriage. Thus, for example, a sale would be triggered when the youngest child ceased full time education or if the spouse remaining in occupation of the property were to marry or cohabit. We can advise you in relation to the law and all the court procedures, including the disclosure process and the valuation of any assets and we can represent you or arrange for you to be represented at court if that should prove necessary. PENSION SHARING AND ATTACHMENT A pension fund may have significant value. It is not uncommon to find that one spouse has a substantial pension fund whereas the other has only a modest fund, if one at all, and will therefore be vulnerable financially upon retirement. On divorce, the court must consider the financial futures of both parties as far as possible and has powers to make orders in relation to the parties’ pension funds to try to secure that objective. These comprise a Pension Sharing Order, whereby a percentage of the value of a pension held by one party to a pension fund will be transferred into a pension fund in the name of the other party, and a Pension Attachment Order, whereby a percentage of the benefits of one party’s pension fund will be paid to the other party without pension benefits on that party’s retirement. We can advise you in relation to the powers of the court and can recommend a number of independent financial advisers so that you can avail yourself of sound financial advice and plan for your retirement income.