Financial Remedy
What is a Financial Remedy Order?
When a married couple petitions to divorce in the UK, they need to also resolve relevant financial issues. This is commonly referred to as financial remedy proceedings, with a Financial Remedy Order. This is a process by which a couple's assets and income are divided upon divorce or separation. The objective of financial remedy is to provide a fair and reasonable financial settlement between both parties.
Application
The procedure for financial remedy in the UK begins with an application to the court. The application form is called Form A. This application can be made by either party involved in the divorce or civil partnership dissolution. The application is made to the family court, which has the jurisdiction to hear and decide such cases.
First Appointment
Once the application is received by the court, the first step is to arrange a hearing to determine how to proceed with the case. At this hearing, the court will consider whether there is a need for further hearings and what type of financial remedy order is required.
The next step is to gather all relevant financial information from both parties. This includes assets, income, and expenses. Both parties are required to provide full disclosure in a Form E of their financial situation, including any debts, savings, pensions, and other assets. Both parties may raise questions regarding the disclosure. If a property is involved, the court may order to instruct an expert on valuation and tax issue. Failure to provide full disclosure can result in the court imposing a penalty.
Both parties shall exchange their proposals/offers to settle their case before the next hearing.
Financial Dispute Resolution Hearing (FDR)
If no settlement is reached, FDR will happen. The main objective of an FDR hearing is to encourage parties to reach an agreement on financial matters before proceeding to a final hearing, which can be expensive and time-consuming. The FDR hearing is an important stage in the financial remedy proceedings as it provides an opportunity for both parties to have a frank discussion and negotiate a settlement.
At the FDR hearing, the judge may provide an indication of how they would likely decide if the matter proceeded to a final hearing. This is intended to encourage parties to make a realistic settlement offer that is in line with what the judge might decide at a final hearing. If parties reach a settlement at the FDR hearing, it will be recorded in a legally binding court order, which can be enforced in the future.
Final Hearing
The Final Hearing is the last stage in financial remedy proceedings in England and Wales. It is where the parties present their evidence and legal arguments to the judge who will then make a final decision on how the couple’s assets will be divided. It is important to note that the vast majority of cases are settled before reaching the Final Hearing stage, either through negotiations or via alternative dispute resolution methods such as mediation or arbitration. However, if the parties cannot come to a mutual agreement, then the Final Hearing will be the final chance to make their case.
During the Final Hearing, each party will have the opportunity to present their case to the judge, including calling witnesses if necessary. The judge will then make a final ruling, taking into account all the evidence and legal arguments presented. The Final Hearing is a crucial part of the financial remedy process and it is important for both parties to prepare thoroughly to ensure the best outcome.
Conclusion
Financial remedy can be a complex and challenging process, and it is essential to seek legal advice from solicitors who have excellent knowledge and experience in family law.
Permanent residence policy changes; stopping certification of tech talent
Today we will look at the changes to other immigration categories in the Immigration Rule Changes Statement
The requirement for continuous residence of 10 years has been revised to exclude short-term stays on visas from being counted towards achieving permanent residency
People who have been legally resident in the UK for 10 years, also known as 'Long Residence', are eligible to apply for Indefinite Leave to Remain, also known as UK Permanent Residence or UK Green Card.
Ten years of continuous lawful residence means the applicant has resided in the UK uninterruptedly for the last ten years on an authorized visa. Applicants may hold a combination of different types of Visas of varying lengths of time, including student visas, business visas and various short-term visitor visas.
However, this Immigration Rule Change Statement removes the eligibility of various short-term visas and some residence situations to count towards ten-year permanent residence.
The specific types and circumstances of the disqualified visas are as follows:
- Short-term Tourist Visitor Visa
- Short-term (English) Study Visitor Visa
- Seasonal Temporary Worker Visa
- EA stay during the corona outbreak
- Staying during Immigration Bail
Immigration Bail is a procedure used when a person is at risk of imprisonment because of their immigration status, mainly for visa overstays or asylum seekers whose appeal rights have been exhausted.
It means after 13 April, ten years of permanent residence with any of the above residence conditions will have to be recalculated.
Contact us immediately so we can help you prepare your documents and submit your application as soon as possible before the new policy comes into effect if you are in any of these situations and are about to meet the 10-year permanent residence requirement.
The Tech Nation will cease operation, and the list of certified agencies for the global talent visa has updated
In the previous article, we mentioned that the immigration department addressed the list of sponsors for the Innovator Founder Visa. This change will also apply to The Global Talent Visa.
As a Visa category for the admission of high-caliber talent, the Global Talent Visa requires very professional qualifications from applicants.
To be eligible for this Visa, applicants need to have a proven track record of winning prestigious awards in the industry or an endorsement from a professional accreditation body in their field.
The list of accredited sponsors that can approve endorsements to Global Talent Visa applicants after 13 April 2023 will also have an update.
The certification body has announced new changes in tech Nation, a technology certification body for digital technology (fintech, gaming, cybersecurity, artificial intelligence) talent.
In January 2023, the UK media reported the Tech Nation had lost its government funding, leading to Tech Nation ceasing operations on 31 March 2023.
Tech Nation is a government -funded organization dedicated to facilitating the scaling of the UK tech ecosystem. Over the past decade, Tech Nation has helped grow and scale over 5000 startups, including Revolut, Monzo, Ocado, Skyscanner, Delivery and many more.
Tech nation is also one of the certifying bodies for the Global Talent Visa, certifying and helping the UK government bring in hundreds of talented individuals in the digital technology sector.
The new immigration rule change statement does not specify how the immigration Service will process applications for Global Talent Visas that have been or will be certified by Tech Nation.
However, Tech Nation has confirmed that they will continue to process applications already submitted for certification as usual after 31 March in the absence of a published alternative accreditation.
Chan Neill Solicitors can advise digital technology talent applicants of the visa pathways that are still available and find alternatives on a client-by-client basis. If you have any questions, contact our immigration team.
Personal Injury Claims: How Our Law Firm Can Help You Seek Justice and Compensation
Personal Injury Claims: How Our Law Firm Can Help You Seek Justice and Compensation
Suffering a personal injury can be a life-altering event, leaving you with physical pain, emotional distress, and financial burdens. At Chan Neill Solicitors, we understand the challenges you face and provide legal support to help you navigate the complexities of personal injury claims. In this article, we will explore 5 main steps to obtaining the compensation you deserve.
Comprehensive Legal Guidance
Our experienced team of personal injury solicitors are well-versed in the complexity of personal injury law. We will carefully evaluate your case, analyse the evidence, and provide you with an honest assessment of your legal options. With our guidance, you will be given options on how to proceed with the case.
Investigation and Gathering Evidence
To build a strong personal injury case, it is crucial to gather evidence. Our dedicated legal team will conduct a thorough investigation, collecting medical records, accident reports, witness statements, and any other relevant evidence. We will diligently work to establish liability and prove the extent of your damages.
Negotiating with Insurance Companies
Dealing with insurance companies can be a daunting task. Our skilled solicitors will handle all communication and negotiations on your behalf, ensuring your rights are protected and you will receive fair compensation. We will advocate for your best interests and fight against any attempts to undervalue or deny your claim.
Expertise in Litigation
We strive to achieve favourable settlements through negotiation. We will evaluate and if necessary, we prepare to take your case to court. Our solicitors possess the skills and experience needed to effectively present your case before a judge. We will tirelessly support for your rights and fight for the maximum compensation you deserve.
Maximising Compensation
We understand the financial impact an injury can have on your life. Our team will work diligently to accurately calculate your damages, including medical expenses, lost wages, rehabilitation costs, pain and suffering, and future financial implications. We are committed to maximising your compensation to help you rebuild your life and secure your future.
At Chan Neill Solicitors, we believe every personal injury victim deserves justice and fair compensation for their losses. Our law firm provides comprehensive legal assistance, guiding you through the personal injury claims process, and fighting relentlessly on your behalf. If you or your loved one has suffered a personal injury, contact our team today for a confidential consultation. Let us help you navigate the legal procedure, seek the justice you deserve, and rebuild your life after a personal injury.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified personal injury solicitor at Chan Neill Solicitors for specific guidance regarding your case.
What Is Pre-nuptial Agreements?
A pre-nuptial agreement (“Pre-nup”) is a legal agreement made between two parties before they get married. Usually, the agreement specifies how the couple wish to split their assets in the event of separation or divorce.
You can also use a Pre-nup if you are planning to enter into civil partnership – although they are often referred to as pre-registration agreements.
Should you get a Pre-nup?
It is very common to think that a Pre-nup is just for wealthy people, such as business people or celebrities who wish to protect their assets. Such an agreement can make sense when one half of the couple has significantly more assets than the other, he/she stands to lose more than the other in an equal split divorce settlement.
However, in the case where neither of the couple have significant fortunes before getting married, they could still wish for a Pre-nup if either / both of them is / are expecting significant further earnings.
Furthermore, should you anticipate receiving gifts of large value (for example, a property gifted by your parents) or there is an inheritance to protect before the marriage, it may be a good idea to consider making a Pre-nup.
Is Pre-nup binding in the UK?
Short answer, no.
Pre-nup is not legally binding, which means that in an application for financial remedy, the court would have absolute discretion ( based on needs and contribution to the marriage ) to decide how to distribute the parties’ assets regardless of the contents of the Pre-nup.
However, if the agreement has been properly drafted, the court will give appropriate weight to it and the parties intentions when assessing an application for financial remedy. If a Pre-nup is drafted properly and no details of assets are left out by either party, it is often the case the court will accept all the terms of the Pre-nup that the party agreed to. To be more precise, the court is more likely to uphold a Pre-nup that is freely entered into by both parties with a full appreciation of its implications and all assets and monies are listed fairly.
Pros of a Pre-nup
It is quite self-explanatory that one of the biggest pros of getting a Prenup is to protect your assets that you have now or will have in the future.
Furthermore, in the case that your partner has significant debts (or likely to incur significant debt in the future), a Pre-nup could be used to protect your assets from being used to satisfy those debts.
It would incur some legal fees for solicitors to draft and advise on a Pre-nup. However, in an unfortunate and unpleasant divorce, a Pre-nup could save you significant stress and further expense, if both parties adhere to the terms of the prenup, during separation and divorce.
In addition, it could be you have concerns that your partner may be marrying you due to your wealth. If your partner agrees to enter into a Prenup with you that leaves you both with fair and reasonable financial terms, this may actually it ease your mind and strengthen the bonds of trust as you enter marriage.
Cons of a Pre-nup
As mentioned above, it is not legally binding, but persuasive to a court.
Also, trying to negotiate the terms of a Pre-nup may be awkward with your partner. It may be something they are unwilling to discuss or enter. It is always best to be open about the reasons for suggesting same. This may still cause a barrier between you.
Additionally, it could be the case that it is the parents of the economically stronger party pushing the couple into making a Pre-nup. A Pre-nup can end up reflecting the parents' wishes rather than the couple's wishes. In this regard, the behaviour that amounts to duress and undue influence may result in little (or no) weight being placed on the Pre-nup in any future financial remedy proceedings. To safe guard against this risk, usually both parties should have separate lawyers representing them.
The future of Pre-nup
On 27 February 2014, the Law Commission published a report recommending the introduction of qualifying nuptial agreements that will limit the court's powers to make financial orders on divorce or dissolution. The court would be prevented from making orders inconsistent with the terms of a qualifying nuptial agreement unless in exceptional circumstance.
To be a qualifying nuptial agreement, an agreement must meet the following criteria:
- It must be contractually valid;
- It must be validly executed as a deed and contain a "relevant statement";
- It must not have been made within the 28 days immediately before the wedding or civil partnership ceremony;
- Both parties to the agreement must have received disclosure of material information about the other party's situation when they entered into the agreement; and
- Both parties must have received legal advice at the time they entered into the agreement.
This is a recommendation to the judiciary, but the intention is clear that unless the Pre-nup is unreasonable and unfair to one of the parties that entered it, the court should be persuaded that these terms agreed to are sanctioned.
Please contact our experienced family law team if you have any questions about pre-nuptial agreements or matrimonial-related enquiries. Our team speak several languages beside English including Mandarin Chinese, Cantonese, Portuguese, Russian, Gujarati and Korean.
What Is Available Financial Resource In Divorce?
The starting point in every case must be to establish the financial positions of the parties (ie. what are the assets and liabilities of the parties). The court will then decide how the available resources should be allocated fairly and achieve a fair outcome.
In order for the court to determine how the available resources should be distributed to the parties fairly, considerations are given to statutory factors stated in Section 25 of the Matrimonial Causes Act 1973. These are also called “section 25 factors”.
The court will also consider some extra-statutory factors: needs, compensation and sharing (Miller v Miller; McFarlane v McFarlane 2006).
What are the Section 25 Factors?
The court will have to take into account of 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: -
- Parties’ income and earning capacity, capital, property and financial resources
- Parties’ financial needs
- Parties’ standard of living during marriage
- Parties’ ages and length of marriage
- Any physical or mental disabilities
- Financial and domestic contributions each party made during the marriage
- Any conduct which will be unfair for the court to ignore.
Income and earning capacity, capital, property and financial resources
The court will take into account the parties’ income from all sources. Their respective actual earning will be the starting point.
The court will also consider parties’ potential earning.
The court will consider parties’ skills, age, and time out of work etc.
Earning Capacity maybe significant In determining who occupy the family matrimonial home.
Hearings
First Hearing/“First appointment” –
Depending on local court practice this will may be used as a first opportunity by the District Judge to address issues and encourage the parties to negotiate.
Procedural matters are dealt with and directions are given by the Judge about the future conduct of the case. The Judge will effectively endorse a timetable agreed by both parties leading up to the next hearing. Typical provision will include a timetable for parties (i) to exchange their questionnaires, which give parties a one-off chance to raise queries against each other’s Form E, (ii) provide certain disclosures; and (iii) a timetable for the next hearing.
In the first appointment, the only people present will be the Judge, the parties and their legal representatives.
Second Hearing/Financial Dispute Resolution Appointment –
The “FDR” is usually listed about 2 months after the First Appointment. By that time both parties should have available all the relevant facts and documents, if directions set out by the Judge in the first appointment are follow strictly. If not, the parties would get a chance to raise these issues with the Judge in the FDR.
The FDR will be led by the District Judge with a view to encouraging the parties to reach a settlement on a without prejudice basis.
Without Prejudice offers will usually have been made on both sides and these will be considered by the Judge and each of the legal representatives will explain their respective positions.
Each Judge has their own way of conducting the FDR. However, the Judge is likely to give a view as to which arguments are likely to find favour and may indicate what kind of order he or she would make if hearing the matter. The parties and their lawyers are then invited to leave the Judge’s room in order to negotiate.
If agreement is reached, the District Judge may make an order there and then but it is quite usual for the matter to be adjourned so the order can be drafted by your solicitor back at the office, approved by the other side and then sent to the Court for approval. If the matter is not agreed, the Judge will make any further directions required and set the case down for a final hearing.
Final Hearing - If the parties are still not in agreement, the matter is listed for a final hearing. This is a much longer hearing, again heard in private, although it may take place either in the Judge’s room or in a Court room.
A very straightforward case might be set down for half a day. A longer case will take up a whole day or even a week. The Judge who dealt with the FDR cannot deal with the final hearing because he/she will be aware of the without prejudice offers which cannot be disclosed to the trial Judge.
At the start of the case, the solicitor or barrister for the Applicant will make an opening speech explaining what the case is about.
Each of the parties and any witnesses then give evidence, according to the timetable set/agreed in the previous hearing or in a Pre-Trial review hearing for more complicated cases, and are cross-examined.
The usual timetable for a final hearing is as follows : the Applicant going first followed by his/her witnesses and the Respondent and his/her witnesses giving evidence second. The lawyers each make a closing speech.
The Judge will then give his or her Judgement and make whatever order he/she considers appropriate. After the order has been made there will be more arguments presented on the question of costs and a costs order may be made.
If you have any enquiries about divorce, please contact our highly experienced family law team.
New Divorce Laws - "No-Fault" Divorce
New Divorce Laws - "No-Fault" Divorce
The Divorce, Dissolution and Separation Act 2020 came into force in England and Wales on 6 April 2022 and this signified a major development of England’s divorce laws for the past 50 years.
Key changes made under the new Act:
- The need for the married couple to prove the irretrievable breakdown of marriage by citing grounds of unreasonable behaviour and separation was replaced by a sole or joint statement.
- The statement of irretrievable breakdown of marriage serves as a piece of conclusive evidence for the court to make an order and this prevents a spouse from contesting the divorce.
- A minimum period of 20 weeks between the start of divorce proceedings and the application for conditional order was introduced.
- New language has been adopted to facilitate a better understanding of the divorce application.
Referring to the first point, the new divorce application introduced a “no-fault” basis which completely replaced the requirements under the previous divorce laws. This is because the previous divorce laws required divorcing couples to prove the irretrievable breakdown of their marriage by citing one of the five existing grounds, these can be referred to as:
- Adultery
- Unreasonable behaviour
- Dissertation by one party
- Two years separation with the consent of the spouse; or
- Five years separation without consent
The previous divorce laws made it difficult for married couples who wanted their divorce to be settled in the most peaceful and straightforward manner. This is because the previous rules adopted a “blaming” basis and therefore couples looking to divorce must either put a blame on one another for the breakdown of their marriage or they must carry out a long-term separation to satisfy the requirements. Inevitably, this caused unnecessary stress and animosity which in turn encouraged potential conflicts between the divorcing parties.
Under the new divorce laws, couples can sign a sole or joint statement of irretrievable breakdown of the marriage to begin the application. This completely removes the need to blame each other or to give reasons for the breakdown of the marriage. Except for certain exceptional grounds, the statement also prevents a spouse from contesting /defending the divorce petition as it serves as a piece of conclusive evidence.
The new rules also introduce a new minimum period of 20 weeks between the start of the divorce application (signing the statement) and the application for the conditional order. When the conditional order is granted by the court, there is another period of 6 weeks before we can apply for the final order of divorce. This change effectively provides the divorcing parties a period to reflect and reconsider their decisions. However when a divorce is inevitable, this also allows the parties time to plan and cooperate on the practical arrangements surrounding the divorce such as financial and children matters.
A change in divorce law has been long-awaited as many would think the previous laws to be outdated, simply increasing animosity and stress in already difficult circumstances. However, the law in respect of financial provision for divorce will remain the same.
We at Chan Neill Solicitors relate to the emotions and stress often involved during the divorce proceedings and our experienced Civil Litigation team can assist in guiding you through every step of the divorce process. Please contact us and we can discuss your best way forward.
Can I Get A Divorce In The UK? Can I Stay In The UK After I'm Divorced?
According to The Independent, divorce petitioning consultations received by UK law firms have increased by 95% during the pandemic. While we want our clients to be able to try to resolve any issues and conflicts in their relationship before deciding to file for divorce, when the relationship between husband and wife breaks down and divorce is inevitable, Chen Neill Solicitors can help you through the entire process, protecting your rights to the greatest extent, and minimising the harm caused by the divorce.
In this article we have conducted some example questions about divorce applications that we hope will be helpful to you. If you have any other than questions that are not related to divorce applications, such as financial division and child arrangements, please feel free to contact us.
Q: Both spouses are non-British citizens and married outside the UK. The husband works in the UK with a work visa and the wife came to the UK as a dependent on a Dependant Visa. After living together in the UK for several years, the wife wants to file for divorce. In this case, will the wife be able to file for a divorce in the UK and is she able to remain in the UK after the divorce?
A: A marriage registered in an overseas country can be recognised by the British government as long as both parties are able to marry according to their place of residence and meet the formalities required by the law of the place of incorporation. Even though some overseas marriage registration formalities may be invalid under the laws of England and Wales, as long as it meets the rules set out in the local regulations for registration, the court can still consider the marriage valid and accept a divorce application filed by one of the parties.
In answer to the above case, the wife can file for divorce in the UK, but if the wife does not obtain a visa other than the husband's accompanying visa (Dependent visa) after the divorce, then she must leave the UK within the stipulated period.
Q: The husband is an EU citizen living in the UK and the wife is a non-EU or non-UK citizen who is also residing in the UK. Is it acceptable for the British court to accept the following case, the parties have registered their marriage in the wife's home country and have lived as husband and wife in the UK for several years and one of them wants to file for divorce in the UK?
A: Same as the previous situation, the couple can file for divorce in the UK, but the divorce may affect the wife's residency in the UK. If the wife is unable to obtain another residency visa after divorce, the Home Office may ask her to leave the UK.
In a marriage relationship, a party residing in the UK on a spouse or dependent visa may be affected by the divorce and may not be able to remain in the UK. But this problem can be solved by applying for other visas, and the solicitors at Chan Neill Law Firm have extensive experience in handling divorce and immigrant visa cases, which can make the divorce and subsequent stay in the UK as smooth as possible.
Case Study
A couple married outside the UK, the husband is a British citizen and the wife is an non-UK citizen. She lives in the UK with her husband on a Family Visa after marriage and has a child. After living together for three years, the husband files for divorce on the grounds of emotional breakdown, and after the divorce, the wife will lose the family visa that was originally approved for marriage. However, since they both have a child during their lives in the UK, and the husband is British, the child automatically becomes a British citizen at birth. After the divorce, we are able to help the wife to switch the dependent visa of the husband to family visa as a parent, subsequently, she will be able to remain in the UK to take care of the child.
If both husband and wife have no children and are not British citizens, and one of them lives in the UK with an accompanying visa that depends on the other party. They are able to continue to work and live in the UK by applying for one of the following visas: Representative of an Overseas Business Visa, Innovator Visa, or Skilled worker Visa after divorce.
Q: On what grounds can I request a divorce?
A: The divorce petition must provide information on one or more of the following five grounds to convince the court that the marriage has broken down to the point of irreparability in order to accept the divorce application. The five reasons are:
(1) Infidelity/adultery (2) Unreasonable behavior such as domestic violence (3) Abandonment (4) Separation for two years with the consent of the defendant (5) Separation for five years
Q: Do I need to appear in court after my divorce application is accepted in court and divorce proceedings begin?
A: Most divorce cases can be made in writing and the court will not require either spouse to appear in court. During the pandemic, if you file for divorce outside the UK and are unable to return to the UK during divorce proceedings, we can arrange a video conference or conference call for a meeting, or we can represent you if necessary.
Please contact our experienced Family Law team who are fluent in English, Mandarin, Cantonese, Korean, Portuguese, Spanish, Russian etc.
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 :
- Divorce petition – i.e. ending a marriage;
- Financial arrangements – how should the matrimonial assets be divided; and
- 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: -
- First Appointment Hearing (FA)
- Financial Dispute Resolution Hearing (FDR)
- 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: -
- Parties’ income and earning capacity, capital, property and financial resources
- Parties’ financial needs
- Parties’ standard of living during marriage
- Parties’ ages and length of marriage
- Any physical or mental disabilities
- Financial and domestic contributions each party made during the marriage
- 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: -
- Divorce petition – ie ending a marriage;
- Financial arrangements – how should the matrimonial assets be divided; and
- 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.