Divorce and Financial Settlement

We understand the divorce process is emotional and we are here to assist you in the process. Our family law team holds a wealth of experience and they are here to make this process as painless as possible for you.

This article sets out the procedures, some facts and some options for you in relation to issues concerning finances and properties. This is intended to be a general guide for readers to have an idea of the procedure, principles and FAQs for Financial Proceedings in UK.

Introduction:

There are three elements in the divorce process :

  1. Divorce petition – i.e. ending a marriage;
  2. Financial arrangements – how should the matrimonial assets be divided; and
  3. Arrangements for any dependent child – contact arrangements.

We discussed the first element in our previous article. If you are interested, please visit click here.

Can I initiate financial proceedings in UK if my divorce petition was finalised in China/countries other than UK?

We understand the position of the Courts in other countries maybe reluctant to address how matrimonial assets should be divided if those assets are located in  England and Wales.

The courts in other countries are reluctant because when they give a court order, the judge will have to take account of whether they have “jurisdiction” to order how assets in UK should be divided between parties.

In simple terms, the courts in other countries will need to decide whether they have both the authority/power to determine a dispute between parties (i.e. in this case how UK assets shall be divided).

The usual procedure is that before you can issue financial proceedings against your husband/wife, there will be a permission hearing listed. The purpose of this hearing will be for the court to decide whether they accept they have jurisdiction to divide your matrimonial assets in the UK.

If the court grants permission then the usual steps for a financial proceedings apply.

How many hearings will there be in financial proceedings?

Generally there will be three hearings if parties cannot reach settlement, the hearings are: -

  1. First Appointment Hearing (FA)
  2. Financial Dispute Resolution Hearing (FDR)
  3. Final Hearing (FH)

We will discuss what will happen in each hearing in our next article.

Do I have to make financial disclosure before, during and after any hearing?

Once a party issues financial proceedings with the court and prior to the First Appointment Hearing, the court will give directions for parties to make full and frank financial disclosure by way of filling in a Form E.

Form E is a detailed questionnaire which helps the court to understand parties’ financial circumstances. Parties must disclose their global assets and liabilities and provide various supporting evidence to verify the financial information they provided to the court. For example, each party is required to provide the latest 12 months bank statements for each bank account held in his/her name or which he/she has interest in. This is for the other party and the court to check whether you have provided full and frank financial disclosure.

Before each hearing, the court will order parties to provide updating disclosure as parties have a continuing obligation to notify the court if their financial circumstances change.

Why do I have to make financial disclosure?

The court has to take into account parties’ income, capital, property and financial needs when they decide how to divide the matrimonial assets fairly and therefore court requires parties to provide full and frank financial disclosure of their global assets when they signed their Form E and in any subsequent updating disclosure.

What are the factors the court will take into account when dividing matrimonial assets?

The factors are set out in section 25 of the Matrimonial Causes Act 1973. These are also called “section 25 factors”.

The court will have to take into account all the circumstances of a case, first consideration has to be given to welfare of any children under 18 years old, and the following factors: -

  1. Parties’ income and earning capacity, capital, property and financial resources
  2. Parties’ financial needs
  3. Parties’ standard of living during marriage
  4. Parties’ ages and length of marriage
  5. Any physical or mental disabilities
  6. Financial and domestic contributions each party made during the marriage
  7. Any conduct which will be unfair for the court to ignore.

My Husband is the breadwinner of the family and I am a housewife, is he entitled to more of the matrimonial assets as he made greater financial contributions?

The court would look into the contributions of the wife in looking after the home and upbringing of the children. The court recognises the housewife’s contribution to the family which enables the husband to work and make financial contributions. The wife’s contributions will then be assessed and how the evidence is presented to the court.

The court may rule a housewife has made equal contribution as that made by the breadwinner husband.

If you want to know more about what will happen in financial proceedings and how will your matrimonial assets be divided if the matter goes to court, please contact us for further information.

In our next article, we will discuss section 25 factors in more detail and what will happen in each hearing.


Divorce Proceedings

We understand the divorce process is emotional and we are here to assist you in the process. Our family law team has wealth of experience and they are here to make this process as painless as possible for you.

Scope of this article:

The divorce process can involve up to three separate elements. These elements are interlinked but we must also consider them separately.

The three elements are: -

  1. Divorce petition – ie ending a marriage;
  2. Financial arrangements – how should the matrimonial assets be divided; and
  3. Arrangements for any dependent child – contact arrangements.

This article addresses the first element of the divorce process.

Who can get a divorce in UK?

Either party to the marriage can initiate divorce proceedings (section 1(1), Matrimonial Causes Act 1973 (MCA 1973)).

What are the legal requirements of divorce in UK?

There are three legal requirements that the petitioner of the divorce has to meet before issuing a divorce:

1, The parties must have been married for at least one year.

2, The court must have jurisdiction to hear the divorce . Whether or not the court has jurisdiction will depend on the parties’ habitual residence or domicile. You must satisfy one of the following criteria: -

  • Both parties to the marriage are habitually resident in England and Wales;
  • Both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
  • The Respondent is habitually resident in England and Wales;
  • The Petitioner is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
  • The Petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
  • Both parties to the marriage are domiciled in England and Wales; or
  • The Petitioner or the Respondent is domiciled in England and Wales.

3, The marriage must have irretrievably broken down. To support the irretrievable breakdown of the marriage, you must prove one of the five facts: -

  • Adultery;
  • Unreasonable behaviour;
  • Desertion;
  • Two years' separation with the consent of the respondent; or
  • Five years' separation (see Practice note, Divorce and dissolution: five years' separation).

If you are uncertain if you can satisfy all of the above legal requirements, please contact our family law team at chinadesk@cnsolicitors.com.

After I filed for divorce, what’s next? (Petitioner’s perspective)

After you file the petition for divorce and pay the court fee (£550), the court seals your divorce application form and sends it to the Respondent. The Respondent is required to complete and return an acknowledgement of service. This document will confirm that (1) he/she has received your petition; and (2) inform the court whether he/she wants to defend the case.

If the Respondent decides not to defend the case, you are required to prepare and file with the court, an application for Decree Nisi, supported by a signed statement.

The court will consider your application for Decree Nisi and statement and if they are satisfied that the marriage has irretrievably broken down, the court will send you a certificate of entitlement to a Decree Nisi. This will set out the date a judge will pronounce the decree.

You will need to wait 6 weeks from the date you receive your Decree Nisi, to submit your application for a Decree Absolute.

How long does it take to get divorced?

An uncontested and straightforward divorce typically takes six to eight months, provided that both parties deal with the court papers promptly.

Does it make any difference who files for the divorce?

Generally, this should make no difference to the final outcome.

However, this may become relevant in certain circumstances.

For instance, if your spouse wants to file for divorce in China and divide the matrimonial assets based on the Chinese legislation, while you consider it is more appropriate to file for divorce in UK and divide the matrimonial assets here, then you should obtain legal advice as soon as possible.

If your spouse issues divorce proceedings in China first, you may not be able to issue the same proceedings in the UK and you may be bound to deal with your divorce proceedings in China.

Do we have to agree a financial settlement and child arrangement before the divorce can go through?

No. The three elements of divorce are interlinked but shall be considered separately.

It is advisable for an agreement to be reached on financial terms as this gives certainty to both parties that they have no claims on the other spouse’s assets and more importantly you can live a separate life from your ex-spouse.

It is also advisable to try and reach an early agreement for any child arrangements to minimise the impact of the divorce to the child. It will be in the best interest of the child if this can be agreed in advance.

If I get married in China or in other jurisdiction, can I get a divorce in UK?

Provided your marriage is recognised by the Family Court of England and Wales and your circumstances satisfies the above three legal requirements, then you should be allowed to get a divorce in the UK.

If you are uncertain whether your circumstances are considered habitually resident and/or domiciled in the UK, please contact chinadesk@cnsoliciotrs.com for further information.