Matrimonial and Financial Procedures (formerly known as Divorce and Ancillary Relief)

The Matrimonial and Financial procedures are seperate but linked processes. Please find a quick summary below:

The Matrimonial Procedure (formerly known as Divorce Proceedings)

There is only one ground for divorce in this country – irretrievable breakdown of marriage.  You can prove this by using one of five facts depending on your circumstances – separation of five years without consent of the other party, separation of two years with the consent of the other party, desertion, unreasonable behaviour or adultery.

The person issuing the Matrimonial Order (formerly known as a divorce petition) is the Petitioner.  The other party is the Respondent. 

The procedure takes approximately six months.

The divorce process ends with the granting of a Decree Absolute which dissolves the marriage.  The Matrimonial Order gives either party the ability to make an application for financial orders to be made.  However, the applications are made under separate proceedings called Financial proceedings.

Financial Proceedings (formerly known as Ancillary Relief)

The following orders can be applied for by either party:

• Spousal maintenance (income payments)
• Adjustment of property ownership (eg transfer of a house from joint ownership to the sole ownership of one or other of the parties)
• Lump sums (capital payments)
• Pension sharing
• Maintenance for children

All assets whether in sole or joint names are considered for division.  Debts in sole or joint names are also considered.  It is sometimes possible to ring fence certain assets or debts depending on the circumstances.

When considering what order to make, the court will have regard to section 25 of the Matrimonial Causes Act 1973:

(1)  It shall be the duty of the court in deciding whether to exercise its powers … to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(2)   As regards the exercise of the powers of the court … the court shall in particular have regard to the following matters -

(a)  the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity 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;
(b) the financial needs, obligations and responsibilities, which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c)  The standard of living enjoyed by the family before the breakdown of the marriage;
(d) The age of each party to the marriage and duration of the marriage;
(e) Any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) The conduct of each of the parties, if that conduct is such that it would be in the opinion of the court be inequitable to disregard it;
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Before any lawyer is able to advise on what level of settlement you are likely to receive both you and your husband/wife will need to make full and frank financial disclosure.  Both of you must complete a Financial Statement, (formerly known as a Form E).  Financial Statements are then exchanged with each other.  Discussions can then begin with a view to reaching an agreed settlement.

It is important to remember that the court avoids making orders in family proceedings wherever possible.  The court will encourage and give you every opportunity to come to an agreement between you.  If no agreement can be reached, the court will make an order on your behalf.

Court proceedings are lengthy, expensive emotional and often distressing.  The alternative is to try and reach an agreement between you and with the help of your solicitors.  In most cases, financial disclosure and discussions on settlement are carried out on a voluntary basis without issuing court proceedings.  If an agreement can be reached in this way, there is a simple procedure in place for having the agreement recorded  and approved by the court to make it legally binding.  This avoids either party or their solicitors having to attend court.  If an agreement cannot be reached and court proceedings need to be issued, negotiations can still continue with a view to reaching an agreement by consent.

It is important to remember that if a financial agreement on divorce is not recorded and approved by the court, both parties’ financial claims will remain open indefinitely.  If you remarry or form a civil partnership you will no longer be able to apply for financial provision.  However, your former husband’s/wife’s claims will remain open against you.  Any delay in longer than about three years from the date a decree absolute is made before you start financial court proceedings could prejudice your claim.  It is therefore important that you deal with financial matters sooner rather than later after matrimonial proceedings are issued.

If you wish to know more about the matrimonial and financial procedure, please do not hesitate to contact Elizabeth Bettes, Head of our Family Department.