Agreement

There are basically three ways in which an agreement may be reached about financial issues without the need for contested court proceedings and these are:

• Discussion between the husband/wife direct which may include the assistance of a Collaborative Lawyer
• Mediation
• Negotiation through solicitors

Some couples are able to reach an agreement between themselves with regard to the division of the finances but it is still recommended that each person takes their own independent legal advice to ensure that the agreement is fair, practical and workable.

Many couples find that it is difficult to talk things through without assistance and for them mediation is a possible option and that will assist in keeping keep legal fees down. Mediation provides a setting in which separating or divorcing couples can try to resolve their issues from finances to the children with a trained mediator present to help manage the discussions and ensure that all points of view are dealt with fairly. Mediation does not suit everyone. In cases were there is an imbalance of power - for example, when there has been violence or perhaps intimidation then mediation would not be recommended. If an agreement through mediation is reached then again, it is still recommended that each person takes their own independent legal advice to ensure that the agreement is fair and practical.

Solicitors can be instructed both to advise on your case and to conduct negotiations on your behalf and through their experience, knowledge of the law and expertise the majority of cases are settled without the need to ever go to court.

If an agreement is reached using any of the options above then a solicitor can prepare either a Separation Agreement or a Consent Order. The Consent Order would eventually be presented to the Court within the divorce process to be approved by the Judge.

Courts

In the event that the parties are not able to agree to a division of the finances between themselves, through mediation or through solicitors negotiations (or perhaps if one party is unwilling to provide full disclosure of their finances voluntarily) then it is possible make an application to the Court for the finances to be decided by a Judge. The court will go through the process of hearing evidence considering the section 25 checklist contained in the Matrimonial Causes Act and then make an order that it considers is fair and reasonable to both parties by balancing each persons needs against the income and assets. These proceedings can be very expensive because of the amount of work required by your Solicitor to conduct your case and the involvement of your barristers time.

Clean Break and Consent Orders

A Consent Order, whether it is with a clean break (see below) or whether there is a continuing obligation for maintenance to be paid to the other party is presented to the Court with a cheque for the £40 court fee after the Decree Nisi has been pronounced. This is not simply a "rubber stamping" exercise, the Judge will want to see financial information from both parties and he or she will ensure that the agreement is fair and reasonable in all the circumstances before it is sealed by the Court. In most circumstances neither party will need to attend.

A Clean Break Order (which can also referred to as a Clean Break Consent Order) allows you to ensure that the agreement is full and final and ensures that your ex-partner cannot go back to court to ask for more money. This can only be obtained within the divorce process and is your only guarantee that there can be no further claims (except in some exceptional circumstances.) A Clean Break is not always appropriate when there are children of the family under 18 years old and when there are very young children involved the Court can sometimes be reluctant to give a clean break. In those circumstances you would be able to obtain a Consent Order which finalises finances but leaves an ongoing maintenance obligation which would come to an end usually at a specified date or event in the future.

Spousal Maintenance

This is a regular payment every month to the other party. It is for the benefit of the other person and should not be confused with child maintenance (please see the section entitled Children related issues). Spousal maintenance is often used in conjunction with child maintenance. An example of spousal maintenance in practice is were there is a young family and the mother is not working. In those circumstances in addition to the child maintenance the father may also be ordered to pay spousal maintenance to the wife from his income to increase her own income and assist her in meeting all the outgoings on the home. Sometimes spousal maintenance can be for a specific term and this can be referred to as a term maintenance order. Maintenance would then be paid for a specified time of perhaps years to provide a cushion for someone to retrain or return to work once the children are older. There are two types of term maintenance orders one that allows the maintenance to be extended for a further period of time at the end of the term and one that does not allow the period to be extended.

In some circumstances it is possible to "buy" the maintenance rights by giving the person who would otherwise receive the maintenance a large capital sum in return for a clean break. Obviously this is only usually appropriate in wealthy families where there are large assets.

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