Financial Settlement Mediation
The most important fact that most divorcing couples do not realise, is that the divorce process in itself, DOES NOT deal with the financial settlement i.e. how the assets & debts of the marriage - property, savings, investments, pensions, loans etc - are going to be shared between you. Nor does divorce automatically deal with child arrangements.
The mediation involves working with both parties to reach agreement on:
- Division of assets & debts
- Spousal maintenance
- Child Maintenance
Divorce mediation is not relationship counselling
When engaging in mediation, the couple have accepted that there is no possibility of reconciliation and accept the need to resolve the practical issues of the split as quickly and painlessly as possible.
During mediation we will guide you both to reach agreement on disputed issues. Sometimes these agreements come easily, sometimes they do not.
When agreements are hard to reach, that is when the mediator intervenes. It is the mediator's role to keep the lines of communication open, encourage empathy and assist the couple in their decision-making process.
Mediators help keep the couple focused on the issues at hand and avoid going off at a tangent. When divorcing couples get off track and stray away from the salient issues, chaos can ensue unless the conversation is managed effectively by a skilful mediator.
Once instructed, we will be working for both parties and will endeavour to bring you both to a fair resolution as quickly and as cost effectively as possible.
By using the Divorce Negotiator you are avoiding the need for each party to instruct their own solicitor and incur the associated expenses.
Once the financial settlement has been agreed in mediation, we can then move on to the final process which is the consent order
Financial Consent Order on Divorce
It is a court order that records your agreement about how you are going to split your assets & debts and makes that agreement legally binding.
Most divorcing couples think that getting a divorce will automatically deal with the financial settlement at the same time - that is NOT the case
Divorce in itself does not deal with how the assets and debts of a marriage are going to be split between you. Divorce deals with the dissolution of the marriage but does not settle the finances or break your financial ties to each other.
To deal with that financial settlement, you need to obtain a financial court order and there are two ways of obtaining that order:
Option 1:
Each party instructs their own solicitor. Both parties then go through financial disclosure, have multiple court hearings when each side argues their position and then, once the court has heard all the evidence, the Judge will decide what the financial settlement will be. The order is then issued and the parties are bound by its terms. This option is very costly and often reaches £20,000 to £30,000 to each party in costs.
Option 2:
The terms of the financial settlement are agreed in mediation and those terms are presented to the court for ratification: hence the term 'consent order' - as the terms of the settlement have been agreed between the parties by consent. The order is issued by the Judge and the parties are bound by its terms.
It goes without saying that option 2 is of course the best route to take. You do not need to instruct solicitors, avoid the need to attend court for any hearings, save thousands in legal costs, but yet come out with the same result - a legally binding court order which severs your financial ties to each other.
If you don't get a consent order, your ex-spouse can make a financial claim many years after the divorce is finalised. This means that any future assets and/or income that you build up are at risk.
Without a consent order you are both financially vulnerable - even after you are divorced
A divorce is never fully complete without a financial order.
Once the settlement is agreed, you need to have that agreement 'rubber stamped' by the court i.e. made into a court order.
There is nothing in the law which says you must have a consent order: however your agreement (whether you have assets or not) won't be legally binding without it. So if either party changes their mind in the future - for any reason - the court will not be able to enforce your private agreement and it will be very expensive to resolve the situation through the courts.
Is a consent order important?
A financial consent order is arguably THE most important part of the divorce processes and it must be drawn up correctly so that it meets all the legal criteria.
If you are selling or transferring property, sharing pensions, transferring other assets or paying maintenance, you need a consent order to make the agreement legally binding. Once the order has been issued, either party can take the other to court if they do not abide by the terms. Even if you do not have much, or anything at all, by way of assets, you need the consent order to protect yourselves in the future.
If you do not obtain the order and either party had a change in circumstances or a windfall e.g. an inheritance or a win on the lottery, your ex-spouse could take a case to court asking for a share in that windfall - and they would be perfectly entitled to do so because a financial order was never obtained. Having a consent order in place ensures that cannot happen.
An order of the court is the ONLY way in which the financial ties that exist between a married (or divorced) couple can be broken
What if we can't agree the terms of the financial settlement?
The law says that you must try to agree the terms between you before you can make an application to the court for a Judge to decide what the settlement will be.
This is where mediation comes into the picture. As specialist mediators and negotiators we will endeavour to get you to a point of agreement, having considered all financial aspects of the marriage.
The mediation will encompass all assets, debts, pensions etc of the marriage as well as producing a written agreement.
Mediation is an incredibly important part of the process and the ideal time to start the mediation is as close to separation as possible. In that way, discussions can also be had relating to interim arrangements before the consent order is obtained e.g. who is going to stay in the marital home, who is going to pay for the mortgage, utilities etc.
Can we just do all of this ourselves?
The simple answer is no: the less simple answer is, maybe - but only some of it.
As stated previously, the consent order is an extremely important process and it must be done correctly.
Often parties will have discussed their financial settlement and may even think they have considered all aspects of it and so do not need any help from a mediator. However experience shows that it is highly unlikely that all aspects of the settlement will have been taken into account and will meet the test of legal fairness.
The law relating to financial settlements is incredibly vague and open to interpretation. There is no set formula for working out a financial settlement as every situation is different and there are many factors to take into account. Trying to navigate your way around this process is extremely difficult and may well mean that mistakes are made or that an application is returned or refused because it has been submitted incorrectly or is deemed unfair in the eyes of the law. Even if you were able to reach a fully encompassing agreement, you would not be able to draw up the final consent order for the court.
Having your consent order drawn up by The Divorce Negotiator as specialists in financial settlements will ensure that you have the best possible chance of your settlement being accepted by the court.
Summary
The consent order is the legally binding order of the court which stipulates how the matrimonial assets & debts are to be divided between the parties and whether there will be any maintenance payments.
The order ensures that no further claims can be made by either party in the future.
No Fault Divorce Application
No fault divorce came into effect in England and Wales in April 2022.
This means that couples are now able to get divorced without one person needing to blame the other for doing something wrong. This change in the law also applies to civil partnerships.
Adultery, unreasonable behaviour, separation and desertion can no longer be used as reasons for divorce.
How does the ' no fault divorce' process work?
1. Couples are now able to get divorced solely on the basis that the marriage has broken down irretrievably.
2. Applications can be made individually or jointly. There is no advantage or disadvantage to either option.
3. It is no longer possible to contest a divorce. So once the application has been made, the divorce will happen.
4. There are 2 stages to the divorce process: the first stage of the divorce is now called the 'Conditional Order' (used to be Decree Nisi).
5. The second and final stage of the divorce is now called the 'Final Order' (used to be Decree Absolute).
6. You now have to wait 20 weeks from the time of a divorce application before you can apply for the Conditional Order.
7. Once you have the Conditional Order, you will have to wait a further 6 weeks and one day before you can apply for the Final Order.
8. The court fee for a divorce application is currently £593. The court takes the payment when the application is submitted.
The most important fact that most divorcing couples do not realise, is that the divorce process in itself, does not deal with the financial settlement i.e. how are the assets & debts of the marriage - property, savings, investments, pensions, loans etc - are going to be shared between you.
The process that deals with the financial settlement is a separate process from the divorce, which only dissolves the marriage.
