Division of Assets

AIt is important when trying to resolve matters by negotiation or indeed if an application has to be made to court that full financial disclosure is made between the spouses and their advisors. In considering what might comprise fair and reasonable terms/orders, full and frank financial disclosure is required. Each spouse must declare assets, liabilities, income, expenditure and pension and life assurance information. This information must be vouched and verified by documents.

In some cases this can be quite a simple procedure with both spouses producing their salary slips and bank statements however, in many cases the procedure for producing a full statement of affairs can be complicated. This can involve third parties who are not involved in the process e.g. business partners or other company directors and the matter can be difficult. In the event that the parties do not make voluntary disclosure to the other side of their financial affairs either party is entitled to apply to the court, (once proceedings for a decree of judicial separation or divorce have commenced), for an Order for Discovery of Documents necessary to the financial affairs of the parties.

The issue of financial disclosure and verification, is one of the most difficult aspects of any separation or divorce case. The process is intrusive and time consuming. I recommend that at an early stage you put together a comprehensive statement of your assets, liabilities, income, expenditure, pension and life assurance. Insofar as documentation is available to verify what is said in the statement, these should also be produced. Preliminary steps should be taken to gather bank statements, credit card statements, income tax returns, pension details and valuations, life assurance policies and business and partnership accounts for a three year period as this is the most likely period sought or ordered by the Court in the absence of agreement.

This process requires your active and timely co-operation. If you can furnish the documentation needed in a quick and orderly fashion this helps the management of the file and reduces the time spent by us.

AIn deciding whether to exercise the powers described above, the court must have regard to the following matters, amongst others:

 

• the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future;
• the financial needs, obligations and responsibilities which each has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise);
• the standard of living enjoyed by the family concerned before proceedings were instituted or before the spouses separated;
• the age of each spouses, the duration of the marriage and the length of time the couple lived together;
• any physical or mental disability of either of the spouses;
• the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family;
• the effect on the earning capacity of each of the spouses of the marital responsibility assumed by each while they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family;
• Any income or benefits to which either of the spouses in entitled by or under statute;
• the conduct of each of the spouses, if such that the court considers it unjust to disregard it;
• the accommodation needs of each spouse;
• the value to each of the spouses of any benefit which the spouse will forfeit;
• the rights of any person other than the spouses but including a person to whom either spouse is remarried.