Division of Finances
The courts have a wide discretion to re-distribute income and assets on a marriage breakdown and it is rarely possible to predict with 100% certainty what the court would award. The Matrimonial Causes Northern Ireland Order 1970 is a guiding legislation that sets out the criteria a Court must apply in the division of the assets and to issue of spousal maintenance.
Whatever the value of assets involved, at MKB Law our policy is always to promote settlement following voluntary disclosure and negotiations where possible. Alternatively we can support you through mediation or we can act on a collaborative basis. Anne Marie Kelly the head of the Family Department is a member of the Collaborative Lawyer’s Panel in Northern Ireland. If Court Proceedings are required then we will represent you efficiently, diligently and thoughtfully.
What does a solicitor do in the division of finance?
It is our duty to inform you as to the costs involved in issuing proceedings and to seek arbitration before judge in the High Court Family Division in Northern Ireland. It is also our duty to ensure that conflict is minimised where possible, that is why we adopt a constructive approach. We are acutely aware of our duty to you that you do not hold false hope nor an unrealistic expectation as to your share of those assets. It is important that you receive honest advice where we know it would be unpalatable and hard to take. You can only make an informed decision on whether or not to issue proceedings if you are made aware of the costs of the proceedings and you carry out a balancing act of the costs compared to the benefits.
A negotiated settlement is not only cost effective it also reduces conflict and confrontation at least where children may be caught in the crossfire of acrimony between the parents.
What do I need to provide?
At MKB Law we encourage full and transparent disclosure of assets one each side, which involves you providing the following for basic discovery:-
P60 for the last 12 month period
Statements for all bank/building society accounts for a 12 month period
Pay slips from the date of the last P60
Details and proofs of all benefits where applicable
Details of all insurance policies, ISA’s, stocks, shares and investments etc.
An up-to-date statement on all pension entitlements either occupational or private
If you are having difficulty collating any of these documents, we are at hand to write to the various financial institutions and insurance companies to seek that information on your behalf. We recognise that in some cases this can be quite time consuming and will ensure the solicitor’s for your husband/wife do not impose unrealistic time frames. Conversely it is important that you do not build up extensive legal costs trying to secure discovery from a spouse who is clearly not willing to cooperate in the process even if they have indicated they would do so. In some cases a spouse can pay lip service only to the provision of discovery and may attempt for whatever reason to prolong the process. At MKB Law we are not shy in letting you know that without cooperation in order to protect your interests it may be necessary to issues proceedings. In some cases this may mean urgent court action including the applications for injunctions to freeze assets, if you hold a view that the other spouse is attempting or has already transferred, dissipated or reduced those assets.
If the process of exchange of discovery has been completed, a settlement can be made either through correspondence or through a joint consultation which usually takes place at the High Court unless through solicitor’s only. At MKB Law we try to negotiate financial settlements without the necessity to engage Counsel where it is possible, or in cases where the assets are limited. In the current economic climate we are finding that many matrimonial homes are in negative equity and our task is to find a way forward which is child focused where there are children, particularly young children living in the matrimonial home. We also promote joint enterprise between the parties dealing with banks and building societies who are attempting to repossess or call in securities.
How do you approach the division of finance?
At MKB Law we offer a holistic approach in each situation and we can call upon colleagues with extensive financial experience dealing with banks and the restructuring of financial and loan agreements for the benefit of the client. There is nothing to be gained in a divide and conquer approach.
We advise you at the outset of your financial entitlements which are as follows:
Periodical payments, spousal maintenance
Payments for the child (this can be in a voluntary basis or through the child support agency if there is no cooperation with the absent parent)
Property adjustment, which means your share of the matrimonial home or another property
Capital Provision, this usually applies in large money cases where you have a high net worth individual who can afford to pay a lump sum over and above the other financial entitlements
Pension provisions against a private or occupational pension scheme.
At MKB Law we have also developed close relationships with other related professional such as accountants, actuaries and independent financial advisers who can give specialist advice on related matters such as tax implications and pension sharing.
How should I divide my property/assets?
The end of a marriage will affect all aspects of your life and cause considerable and emotional upheaval. In the midst of this stress and grief you need to decide how to divide your property and other assets. It is important to receive expert advice when making this decision. At MKB Law Family and Matrimonial Law department we offer a service tailored to suit each individuals needs, to help you make these tough decisions about property and assets so you can reach the best solution for you and your children.
At MKB Law we advocate an amicable approach to the division of assets. An immediate rush to Court Proceedings will involve you in potentially extensive legal costs and also increase acrimony.
The most cost effective and child focused approach is to engage in negotiations supported by the provision of full financial disclosure of each parties income, outgoings and assets. This means bank statements, pay slips, pension details and insurance policy details. Both parties should also be able to agree on a jointly instructed Estate Agent to value the matrimonial home and any other properties.
When this discovery is exchanged to each parties satisfaction it should be possible to make an Offer in Settlement or hold a joint consultation so that the issues can be narrowed and agreed. At MKB Law we have the detailed knowledge and experience to guide you as to an appropriate division of the matrimonial assets, taking in to account all of the factors set out in the Matrimonial Causes Order Northern Ireland 1978:-
- Housing needs
- Age of the parties and length of marriage
- Preferences of the children
- Earning capacity of each party
- Future accommodation needs
How will my case be managed?
A negotiated settlement is preferred, however if that is not possible we have experience and resources to manage cases. The Court if necessary will take urgent action to protect client’s assets, for example if there is threat of disposal of an asset without agreement, injunction proceedings are necessary, what is known as a Mareva Injunction which will have the effect of freezing assets until an accommodation is reached between the parties or by further court order.
On the breakdown of the marriage each party has financial entitlements as follows:-
Periodical payments of spousal maintenance
Capital provision that is a lump sum settlement if the assets permit
Property adjustment which means the matrimonial home and any other property owned jointly or by one spouse
Pension entitlement to a share in the other spouse’s pension, either occupational or private
How is child maintenance decided?
The maintenance for the children is assessed through the Child Support Agency, where agreement cannot be reached between the parent of care of the absent parent to make. Parties are advised that the formula applied by the Child Support Agency is 15% of the absent parents net income for one child, 20% for children and 25% for three children.
In addition, the earning capacity of the absent parent will be taken in to account if that party falls in to the higher earnings (higher tax paying) requirement for what is termed a uplift on child maintenance and this can be addressed through the courts in the absence of agreement.
If agreement cannot be reached, the court proceedings are termed ancillary relief proceedings and conducted through an exchange of Affidavit’s, court ordered exchange of discovery and various set of hearings before the Master in the High Court Family Division.
At MKB Law we ensure that you are kept fully appraised as to how your legal costs are building up and we operate on interim billing, which can be structured either on a monthly basis or quarterly. All legal advisors are under obligation to report legal costs built up to a financial dispute resolution hearing before the Master and a note of these costs are attached to the offers in settlement. Legal advisors have a duty of mitigate against us particularly where the legal aid fund is engaged.