“The Engagement is off” – now what?

Marriage is a huge commitment and sometimes couples do not get as far as saying, ‘I do’.

It is a fact, in an ever increasing cohabiting society that, prior to an engagement, couples have spent a long time integrating their personal assets and finances in anticipation of the marriage.

The truth is that engaged couples do not enjoy the same rights as married couples. The common law marriage concept is a myth.

Therefore, legal advice must be obtained regarding what happens if separation occurs prior to marriage on a range of issues.

Some of the common questions that need to be addressed are:

1. What happens to the engagement ring?
2. What happens to any jointly or solely owned property?
3. Who will the children of the family live with and spend time with?
4. Who will keep the pets and the arrangements for their costs?

How can we help?

The Family Team at Browells can help guide you through your separation or indeed help you plan for the future. It is always our recommendation that tailored advice is given to plan for the future. It can save couples a lot of stress and costs if they take a proactive approach to obtaining legal advice from the outset of cohabitation.

The Team can be contacted on 0191 691 3418 or by email at family@browells.co.uk.

Is it always 50/50 when a marriage breaks down ?

Often the most pressing concern for anyone embarking upon divorce proceedings is what the financial impact will be of the separation and divorce.  The family finances can often become an extremely divisive issue, which can take its toll on the separating couple.

Unfortunately, there is no standardised way to work out easily how the assets of the marriage should be divided. The current matrimonial legislation in England & Wales operates on a discretionary basis with the primary focus of the court being upon ensuring that the needs of the parties are met.

This means that each case is different as all of the circumstances and differentials of each case need to be considered on a case by case basis and on their own merits.

That being said, the starting point is equality and it is for each of the parties to the marriage to, if appropriate, put forward their case as to why there should be a departure from equality.

In some cases an equal division of the assets will be appropriate and in others it will not.

How is this achieved?

The court is seeking to achieve an outcome which is fair and this may result in one of the parties being awarded a greater share than the other.

In order for the legal representatives of the parties and the court to achieve an outcome that is fair, it is important that both parties have entered into full and frank disclosure of the financial assets and resources.

Transparency as to each other’s financial needs and commitments can assist greatly when negotiating a division of the matrimonial assets.

What factors can affect the division?

The court will consider the following when applying their wide discretion to the division of the matrimonial assets:

• The welfare of any children of the family
• The available capital , income and other resources of each of the parties
• The parties financial needs and obligations
• The age of the parties and the length of the marriage
• Any physical or mental disability of either party
• The contributions made by each party to the welfare of the family, this can include looking after the home or caring for the family

Every marriage is different and as such every matrimonial financial settlement is also different.

How can we help?

It is extremely important to ensure that you take legal advice regarding the financial matters relating to your divorce to ensure that you are advised and assisted in achieving a fair outcome.

In circumstances where you have reached an agreement directly with your estranged spouse, it is highly recommended that you still seek legal advice on a potential financial agreement. The agreement should then be incorporated into a consent order for approval by the court to make it legally binding and enforceable. Legal advice prior to presenting it to the court can ensure that it is both fair and likely to be approved by the court.

At Browell Smith & Co we aim to provide clear and tailored advice and assistance in respect of your specific family circumstances. Our family law solicitors are highly experienced in this area and able to advise and assist you in negotiating and/or making an application and representing you in the Family Court should it become necessary.

Matrimonial Finances – Dividing the Matrimonial Pot

In an application for Divorce, the Final Order will determine the end of the marriage.

It will not of course end the financial ties between former spouses. A Financial Remedy Order is required, preferably by agreement of the parties or, if necessary, the Court will make an order as to the division of your hard- earned cash, property and pensions.

At Browell Smith and Co Solicitors, we advise and assist our Clients in negotiating financial settlement and, where it is possible to do so, keep matters out of court by agreeing a division of the assets and incorporating that into a Financial Remedy Order to be approved by a District Judge.

Simply reaching an agreement does not mean an Order will be approved by the Court in those terms.

Each and every case is determined on its own specific facts and circumstances.

The starting point in respect of a division of matrimonial assets is to ascertain “what is in the pot”.

Once all matrimonial assets are quantified then the first exercise is to determine what would be a fair division of that pot having specific regard to the Section 25 factors as set out in the Matrimonial Causes Act 1973.

The needs of any children are of course paramount.

Thereafter the needs of the parties both now and in the future must be considered.

It is of course preferable where possible for there to be a clean break as to income, capital and upon death. This enables parties to be in a position to move on with their lives.

Negotiating and Drafting Financial Agreements

The Family Law Team at Browell Smith and Co are here to assist you throughout divorce proceedings to include negotiating and drafting financial agreements and representation at Court, should agreement not be reached. We strongly recommend obtaining legal advice at the outset of matters. If you require advice and assistance, no matter what stage of proceedings you are in, then please do not hesitate to contact the Team.