Divorce and Family FAQ – Financial Remedy

Our Divorce and Family team answer some common questions regarding financial remedy.

We lived together before we got married. Does this make any difference to our financial settlement?

This has the effect of lengthening a marriage so for example if you have only been married for 2 years but lived together for 10 years prior to this then the court will look at the whole of your relationship when considering things such as division of assets and equalisation of pension.

My spouse and I entered into a pre-nup prior to our marriage. Is this legally binding?

Whilst not legally binding, provided the parties gave proper financial disclosure, both had the opportunity to seek independent legal advice, there was no duress or undue pressure and the agreement was entered into at least 14 days prior to the marriage, significant weight will be attached to it. The Court would not follow an agreement which was fundamentally unfair therefore it is important to review the clauses regularly and consider a post nuptial agreement.

Do we have to go to court to deal with the separation of our assets?

No, if you are able to reach agreement with your spouse then there would be no need for the Court to adjudicate. We would always advise that any agreement is included within a clean break consent order which should be endorsed by the Court.

What is a clean break consent order?

This is a document which records the financial agreement you have reached with your spouse and provides for things such as the transfer of property and payment of maintenance. The important thing here is that the Court have the power to order a clean break which, depending on the circumstances and the clauses used, would protect you and your spouse from any future financial claims in relation to capital and income and could event protect your estate on death.

Will I be able to stay in the house?

There is no quick answer or standard formula for this. It will depend upon the circumstances of your case, the assets available and the needs and resources of each party and the children.

Will my spouse be able to make a claim against my pension?

The quick answer is yes. The Court have the power to make orders in relation to pension. Consideration would have to be given to the most appropriate way of dealing with the pension assets for example there could be equalisation of pension value or pension income or even offsetting. The schemes can be complicated and expert advice from a pension actuary is often needed.

I have not worked during the marriage and do not have an income. How can I fund my legal costs?

In certain circumstances, if all other avenues have been exhausted, an application can be made to the Court for an order requiring your spouse to assist with your legal costs.

Will my spouse be ordered to pay my legal costs at the end of the case?

It is not usual for costs to be awarded in the family court but in certain circumstances where there has been bad litigation conduct the Court has the jurisdiction to award costs.