On Divorce, Judicial Separation and Dissolution
Understanding Division of Assets
The division of assets is often the most difficult problem to solve in the separation process. The technical name for the application made to the court regarding the division of assets is Ancillary relief.
There are a range of financial orders available to spouses under the Matrimonial Causes Act 1973 and to civil partners under the Civil Partnership Act 2004.
Orders relating to the division of income are: Maintenance pending suit, periodical payments, and secured periodical payments. Orders relating to division of capital include lump sum orders, property adjustment orders, orders for sale and pension sharing orders.
Family assets can be divided between the parties either by agreement or by court order. It is almost always best to try to negotiate a settlement with your spouse than to issue court proceedings.
In order to fully advise both spouses/partners of how the family assets should be divided, it is crucial for them both to provide their legal representatives with financial disclosure. Financial disclosure is effectively a detailed summary of the spouses’/partners’ capital, pensions and income. Financial disclosure is usually provided in a document called a Form E, but it is sometimes not necessary to complete such a document, if the assets are limited and both spouses/partners agree to proceed without a Form E, choosing instead basic financial disclosure.
Once both spouses/partners have provided their respective financial disclosure, they can be advised of the appropriate division of family assets and the negotiations can commence. They can either reach an agreement about division of assets directly with each other, they can choose to attend mediation, or they can instruct their solicitor to negotiate the terms of the settlement on their behalf. If agreement cannot be reached, then one or the other spouse/partner can issue court proceedings to deal with the matter.
If agreement can be reached about division of assets, the terms of the agreement will be incorporated into a document called a Consent Order. The Consent Order can be lodged with the court at Decree Nisi stage and becomes effective on Decree Absolute. If agreement cannot be reached, the court will make an Order detailing how the family assets should be divided.
Once the Consent Order or court Order is made, the terms need to be implemented within the timescale provided for in the Order.
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