Some things are worth revisiting. In October last year we asked an expert family law barrister of 14 years' call, where finances are at issue in divorce cases to give us his top ten tips. Here there are again.
1.Don’t just move out – have a plan.
The status quo can be a significant feature in determining either the final outcome of a case or the interim position during the course of the proceedings. Parties who leave the family home without giving it a great deal of thought may find themselves staying with friends or relatives for many months. If you seek to preserve the family home for the benefit of the children that argument is stronger if the children live in the home and you are meeting the outgoings.
2. Decisions about children affect how the finances might be divided
The welfare of minor children is the court’s first consideration when determining whether a settlement is fair. Where the only asset is the former matrimonial home it is often preserved for the remainder of the children’s minority and the other parent has to wait for their share of the equity. However, in many cases the residence of the children is often decided by default when one party moves out. There is often a misunderstanding that mothers will always be granted the residence of children. In any residence dispute the most significant factor is the status quo and the court is unlikely to change that status quo without good reason.
3.Contributions towards a marriage and during a marriage may well be irrelevant.
The House of Lords decided a number of years ago that contributions during a marriage may well be more than financial and that the former matrimonial home should usually be considered to be the product of the parties’ common endeavour. If one party has been looking after the home and / or caring for the children their contribution is likely to cancel out the financial contributions of the other party.
4.Pre and Post marriage contributions can be helpful
Contribution outside of the marriage may well be significant. In some cases it is possible to argue that assets brought into the marriage are not matrimonial property. They are pre-owned wealth. This argument can get weaker where the marriage has been a long one. It is more common to be able to seek an adjustment where one party has been meeting the cost of maintaining matrimonial assets since separation most often by paying the mortgage on the family home.
5.Forget about bad behaviour
Save in cases of serious violence or serious financial misconduct the court will not take into account the bad behaviour of one party during the marriage and it is extremely unlikely to be interested in who was responsible for the divorce.
6.Think practical – what is possible? What could you borrow? What do you need to buy a new home?
A realistic argument that a certain sum of money is needed to meet a particular need supported by proper evidence is almost always more attractive for a court. If one party seeks certain funds to rehouse then their argument will be stronger if there is evidence of their mortgage capacity and property particulars for the area in which they intend to buy.
7.Suspicions about hidden assets might not be enough
Many parties are concerned that their former spouse has not been full and frank about their income or their savings. This is particularly common where that party is self-employed. It can be harder to follow the money. If it is possible to find a hidden asset this is all very well and good but courts do not usually make assumptions about hidden funds in the absence of clear evidence. Unanswered questions or doubts over good faith are rarely enough.
8.Don’t waste money chasing foreign assets
Depending on its location there may be little point in obtaining an order in the English Courts that orders the sale or transfer of foreign assets. The order may not be enforceable as the asset is beyond the jurisdiction of the court. Foreign courts may not uphold the English order and in any event further applications abroad are expensive. Where possible it is better to ask for an adjustment in the division of the assets that are within the reach of the court.
9.Be open with disclosure
A majority of cases settle before final hearing and the parties often have only two opportunities to place evidence before the court when they file their financial disclosure (their Form E) or when they answer a questionnaire from the other side. Whilst there may be a temptation to try to avoid difficult or sometimes stupid questions a party’s case is generally best served by placing as much information before the court as possible. It is then easier for an advocate to advance that party’s case or rebut the argument of the other side.
10. Don’t get excited if your estranged spouse wins the lottery
On divorce parties are each entitled to a fair share of the matrimonial assets. However, a lottery win or an inheritance is not matrimonial property. Given that most cases are decided by reference to needs a lottery winner is unlikely to need much of the matrimonial property. However, the other spouse cannot expect a share of the lottery millions to be heading their way.