C C Smale Family Lawyer

When your marriage breaks down, unless there are no assets at all, it is understandable to ask “what sort of financial settlement am I going to get”. I find that some people have more realistic expectations than others.

Unrealistic expectations are often fuelled by popular perceptions. Celebrity divorces have a tendency to lead husbands to fear that they are going to have to pay out large sums. Two cases from 2006 are significant  (not involving celebrities but wealthy people all the same).  Melissa Miller got a settlement of £5 million out of total assets of £32 million – from a marriage of just two years and nine months where there were no children. Julia McFarlane obtained maintenance of £250,000 per year, this had been a sixteen year marriage with three children where the husband’s total income was £750,000 per year. The obvious fact is that those cases which make the news or the law reports are not typical, by virtue of the fact that those people have more money than the rest of us do. Most normal people just want their financial needs to be met.

Friends who have been through marriage breakdown may well tell you their experience. Those whose settlements were amicable are likely to feel happier about what they came out with. Contested cases are more likely to be unsatisfactory to either party. A good test is to consider that if both the husband and the wife are equally unhappy about the deal they ended up with… the settlement is probably just about fair! The sure thing about listening to what your friends ended up with in their divorce settlement is this: their case is different to yours.

As solicitors we are often able to reassure people whose expectations are overly pessimistic and fearful. We are also able to caution the over-expectations of others. What we usually cannot do is to tell you exactly what you will get if you go to court.

A good start is to read my post about financial disclosure.

Some other things I think are worth pointing out are these:

There is a legal obligation to pay maintenance for your children who do not live with you. In cases of modest wealth (which is most of them) maintenance for spouses is nowadays rare. This means that if one spouse expects to be able to keep the matrimonial home they will usually have to pay the outgoings including any mortgage on the property.

Consider entitlements to welfare benefits and tax credits.

Consider pension entitlement.

Get advice from financial advisers, not just solicitors. Be practical and consider your options.

The court is unlikely to consider who has been good and who has been bad in your marriage , who is at fault or who is blameless.

Families in the 21st Century take a wide variety of forms. Marriage is less common than in years past. Of those who marry, divorce and separation is common. There is a tendency to cohabit rather than to marry. Significant numbers of children are conceived in relationships which are relatively transient and there is no cohabitation at all. There are lone parent and step-parent families. New relationships are entered into some of which last;  some of which end and the parties move on to new relationships of one sort or another.

Legally there is a significant difference between marriage and other forms of family life. Marriage is a contract which sets out certain legal obligations. The law between married couples is very different to the law between unmarried people. Marriage is not “just a piece of paper”. There is no such thing as “common law marriage”. Many people find these things this out to their cost.

Let me give you some advice

Who does this advice apply to? It applies to anyone who needs to sort out money and property on marriage breakdown – it is unlikely to be relevant to unmarried couples. It deals with the law in England and Wales.

Who does it not apply to? There are some situations where this advice may not apply. If you can fully discuss all the relevant details with your husband or wife you may decide to do away with what I am going to suggest.

This is what you do. You download a Form E and you fill as much of it in as you can.

How much of it can I fill in without a solicitor? You can fill in most of the first twenty pages – your solicitor only needs to check it through it with you. The rest sometimes requires a little more help.

How do I answer the questions about pensions on page 12? If you have a pension I suggest you send a copy of page 12 of the Form E to your pension provider and tell them you need the answers to those questions. The pension provider has to provide you with the information without charging you for doing so unless you ask for the  same information more than once in one year.

What does “income needs” mean on page 20? These are your regular outgoings.

What if some of the questions do not apply? At this stage, leave them blank.

What else do I need to do? Obtain the documents mentioned in the Form E such as 12 months bank statement for each account you have. If you need to get copies of bank statements from your bank there is a limit to how much they can charge no matter how many sheets there are (it was £10 last time I looked). If you have a business you will need the last three years accounts and copies of tax returns. if you are employed you will need to obtain your last P60 and three months wage slips. Read the form carefully to see what other documents it asks for.

This sounds difficult and time consuming. Do as much as you can. Whatever you cannot do your solicitor will help you with; but there is no point in paying for stuff you can do yourself. Yes, it is boring.

I don’t expect my husband / wife will be willing to fill in their form E or provide me with information. Look, at this stage don’t worry about with what your wife or husband will cooperate with, it is something we will have to deal with when we get to it.

Why are you advising me this? Because getting the Form E done is not only the key to presenting and negotiating your case, it also keeps your legal costs down if you do it properly.