Do the parties have to involve
the court to divide the matrimonial assets?
For most matrimonial assets such as the family home, in
the majority of divorces the parties will reach a direct
agreement between themselves and through their solicitors
to record such an agreement without the need to involve
the court. However, even if an application for a financial
order has been made as shown in the step-by-step
guide, the parties can come to an agreement
at any stage during first appointment, financial
dispute resolution (FDR), or the final hearing, resulting
in a consent order.
However, where there are pension arrangements as part
of the matrimonial assets that cannot be resolved by offsetting,
the couple must apply to the court to implement any sharing
of the pensions through an earmarking
order or pension sharing order. This is because a
third party is involved, namely a provider or scheme,
that cannot act to divide a pension arrangement without
a direction from the court.
Which party can apply for a financial order?
Any party of a divorce, judicial separation or nullity of marriage can apply for a financial order and the step-by-step
guide shows how this process works in practice.
Where the parties cannot come to an agreement over the
matrimonial assets, or where there are pension arrangements
to be divided other than offsetting,
applying for a financial order will be the only way to
resolve these financial matters.
Must the division of assets be decided before the
divorce is final?
The application for divorce
proceedings and ancillary relief proceedings are separate
procedures so the granting of any financial orders against
the matrimonial assets or any pension arrangements can
and often does occur after the divorce is final. However,
if a pension
sharing order is granted before the decree absolute,
then it will still be possible to apply for a variation
of settlement order to prevent the order from being implemented,
whereas this would not be the case after the divorce is
In some situations it could be advantageous to resolve
the financial matters before the divorce is final and
to postpone the decree
absolute. For example, divorce may be detrimental
to a spouses rights from National Insurance (NI) contributions,
death in service benefits from pension arrangements, any
rights under the former partners will or rights to remain
in the family home, were this property not in joint names.
Can pre-nuptial agreements be used to protect assets?
If the parties are not married but living together then
an agreement of asset ownership between the parties will
be enforceable as the courts do not have jurisdiction
over non-married couples.
For married couples the court in the United Kingdom can
look beyond any pre-nuptial agreement when making a final
order on divorce, judicial
separation or nullity as the courts have jurisdiction
over the division of the matrimonial assets.
Therefore the basic rules of the Matrimonial Causes Act
73) requiring the court to have regard to the needs
of both parties will still apply, irrespective of any
written agreement between the parties.
At what point is it necessary to appoint a solicitor?
In all divorces where there are assets and pension arrangements
that are significant to the parties concerned, it is important
to seek professional legal advice. Any problems will usually
arise when dividing the matrimonial assets and although
the basic rules for ancillary
relief can be found in the MCA 73, a solicitor will
be able to provide expert knowledge of the decisions the
courts have reached in previous divorce cases.
A solicitor will also help the party in a divorce on deciding whether to make or accept offers to settle
during ancillary relief proceedings as well as working,
where applicable, with a pensions expert to determine
a fair value of the retirement benefits from any pension
What circumstances would require expert evidence?
Where the matrimonial assets of a couple on divorce includes
any significant and complex assets the court may have
regard to, and require expert evidence, this being determined
at the first appointment as the step-by-step
guide shows. For pension rights a valuation
other than the cash equivalent transfer value (CETV) produced
by the pension arrangement provider would require expert
This would be the case where the CETV
Method does not give a fair value of the members pension
rights as may occur for a public service scheme, final
salary pension, or Armed Forces Pension Schemes. Although
the CETV from the provider would be used as a basis of
valuation, a suitably adjusted
CETV can be calculated that reflects the circumstances
and specific needs of the parties on divorce.
Upon what basis would the court decide the division
of matrimonial assets?
The court will have regard for the basic rules in the
MCA 73 when resolving the matrimonial assets on divorce
and in particular seek to achieve a clean
break between the parties where possible. These rules
direct the court to consider such matters of the parties
as income, property, financial needs, obligations, standards
of living, age of the parties and so on.
In addition, current case law will also influence the
future decisions of the court as White
v White (2000) has changed the emphasis from satisfying
the needs of the parties to an equal split between the
parties as the starting point of any division of significant
Who can make an offer to settle during proceedings?
Either party can make a written offer to settle all or
part of the proceedings relating to the application of
ancillary relief. This can be done during the first
appointment, FDR or the final
hearing or at any stage of the proceedings. The court
will expect both parties to make offers and proposals
during the proceedings as can be seen in the step-by-step
guide and for the recipient of the offer
and proposals to give them their proper consideration.
What happens if the parties cannot agree upon a
single pensions expert?
Under rule 2.61C of the Family Proceedings Rules that
apply to part 35 of the Civil Procedure Rules 1998, this
process is shown in the step-by-step
guide, the court has the power to direct
evidence to be given by one expert only.
relief proceedings and at the first appointment, the
court will consider the pension arrangements as presented
on Form E and if necessary the court will require further
evidence from a pensions
expert. The court will require that both parties provide
a list of suitable experts and the method by which the
expert is to be selected.