Getting a divorce under English law is now relatively straightforward after the law was modernised and the requirement to show grounds for the breakup of the marriage removed.
The more complex part of a divorce is the financial settlement.
Often, couples believe it is nothing more than a matter of selling the matrimonial home, dividing the money and each going their separate ways. However, it is rarely as simple as that. There is nothing illegal about a couple sorting things out themselves and going their separate ways but without a court order reflecting the terms of the agreement the door is always open for either party to make a claim later on in life. This is because the court has power to make a financial order pursuant to Section 25 of the Matrimonial Causes Act 1973. Only a court order can bring that power to an end by resolving financial matters in an order which brings potential financial claims between the couple to an end permanently. This is in effect a financial divorce.
Even if a married couple have no assets whatsoever, and no children, the court can still make an order and prevent the parties to the marriage from making any further claims against each other later on in life. Such an order must be approved by a judge of the court who is provided with information about the couple’s assets on a Statement of Information Form known as a D81.
Ideally, the order and the D81 should be drawn up with the benefit of professional legal advice from a specialist family lawyer. The underlying principle guiding the preparation of these financial consent orders is that the couple must provide each other with full information about each other’s finances. If there is any suspicion that information is being withheld, then questions can be raised and ultimately the court can order a party to answer those questions and provide further information.
The D81 form contains a declaration known as a statement of truth. This confirms that the information contained within the form must be a full and frank declaration of each party’s financial position. If parts of the form are left blank this will be queried by a judge who will require the information that has been omitted.
The thorny question often arises as to what assets should be included? Sometimes there can be assets which arose before the marriage or after the marriage. Sometimes a person believes that an asset belongs solely to them and does not form a matrimonial asset. In certain cases, where a particular need arises, the court can actually ignore when and how an asset came into being and the court has the power to share an asset that may have arisen entirely outside of the marriage.
Trying to sort out matrimonial finances without legal advice is like trying to service a Ferrari with a hammer and chisel. It shouldn’t be done.
At Maxwell Hodge we have a range of packages to suit every pocket beginning with a fixed fee consultation for £150 plus VAT for up to an hour of initial advice.