How to Divorce And Keep Everything

Can you divorce and keep everything? It sounds impossible, doesn't it? In this blog, our Family Law Solicitors look at your options when it comes to negotiating a financial settlement.

Online and London Family Law Solicitors

For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi

Getting divorced and keeping everything

In England, the family court has the power to divide your assets when you split up from your husband or wife and one of you starts a financial court application and asks the judge to make a financial court order.

When the court makes a financial court order it does so after considering a range of factors, with two key principles being fairness and meeting the needs of both the husband and wife.

Most Family Law Solicitors would say don’t get married if you are of the mindset that if you separate or divorce you want to keep everything or at least take legal advice first on:

• How to structure asset ownership
• A prenuptial agreement

It is worth knowing that if you are unmarried, you are more likely to keep everything if you split from a partner. That’s because, under current law, a cohabitee can only argue for a share of property owned by you if they have a property or trust law right to it even though they are not the legal owner. In divorce proceedings, the fact that the family home is owned in your sole name does not carry much weight if you both need to rehouse yourselves.

Will a prenuptial agreement allow you to keep everything if you divorce?

A prenuptial agreement is not legally binding in an English court of law. This means that a family judge making a financial court order is not duty-bound to follow the terms of the agreement and make a financial court order on the same terms. A court may follow the terms of the prenup or only give it limited weight, depending on:

1. Whether the terms of the prenup meet need? For example, after a 20-year marriage will one spouse be left with nothing and have nowhere to live?
2. Are the terms of the prenup fair? What may be considered fair may depend on the length of the marriage and whether a couple has children together
3. Was there pressure placed on the husband or wife to sign the prenup? Coercion to sign the document is not acceptable
4. Did both parties to the agreement take legal advice from a prenuptial agreement solicitor?
5. Did both parties to the agreement provide details of their financial and other circumstances? If a spouse signed a prenuptial agreement without first being made aware of her spouse’s trust fund or inherited wealth then she will not have been able to give informed consent. If a wife said her business shares were worth £1 million when she knew they were worth £10 million then the prenuptial agreement will carry little weight with the court
6. Was the prenuptial agreement signed well in advance of the wedding date?

These factors mean it is essential to take specialist legal advice from Prenuptial Agreement Solicitors about what should go in your prenuptial agreement. Your Prenup Lawyer may not recommend that your spouse gets nothing in the prenup as that may mean the prenup fails on points one and two (meeting needs and fairness) but they will advise you on how best to sign an effective prenup.

What happens in a divorce financial settlement if there is no prenuptial agreement?

If a divorcing couple did not sign a prenuptial agreement or a postnuptial agreement a family judge deciding on the financial settlement must look at all the Section 25 factors in the Matrimonial Causes Act 1973 when making a financial court order.

Firstly, the court must have regard to all the circumstances of the case, with the first consideration being given to the welfare of a minor child of the family who has not reached the age of 18. A child of the family is a child of both parties to the marriage or a child who has been treated by both the husband and wife as a child of their family. This therefore includes step-children.

After giving first consideration to the child’s needs, the court must go on to consider these factors when making a financial court order:

1. The income, earning capacity, property and other financial resource that each of the parties to the marriage has, or is likely to have in the foreseeable future. In the case of earning capacity, the court will consider any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire. For example, increasing hours of work or getting a better-paid job
2. The financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future
3. The standard of living enjoyed by the family before the marriage breakdown
4. The parties' ages and the length of the marriage. Pre-marriage cohabitation can count towards a long marriage if a couple moved seamlessly from living together to marriage
5. Any physical or mental disability of either of the parties to the marriage. A disability could impact on matters such as the extent of a spouse’s housing needs or their ability to return to work and support themselves
6. The contributions that each of the parties has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family. Contributions as a stay-at-home parent are valued by the court as highly as the financial contributions of the sole or main breadwinner
7. The conduct of each of the parties to the marriage but conduct is only considered if it would be inequitable to disregard it
8. The value to each of the parties to the marriage of any benefit which, because of the end of the marriage, that party will lose the chance of acquiring. This normally relates to pensions

In the absence of a prenuptial agreement or postnup, the court has more discretion. That’s why couples are increasingly asking for a relationship agreement either before or during their marriage so they can have some peace of mind about what will happen to their finances if they split from their husband or wife.

How can OTS Solicitors help you negotiate a financial settlement?

OTS Solicitors specialise in family law. We have clients across the globe who need our help with advice on family law. Whether you need legal advice on a prenuptial agreement, postnuptial agreement or on divorce jurisdiction our expert Family Law Solicitors can help you.

Online and London Family Law Solicitors

For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi

 

Related Posts

Negotiating a Financial Settlement

How does the court divide assets on divorce?

OTS Solicitors Celebrates its Inclusion in the 2024 Chambers Guide to the Legal Profession

Are Cohabitation Agreements Legally Binding?

Postnuptial Agreements and International Marriages