Reaching a financial settlement is always a cause of considerable concern to anybody contemplating divorce proceedings. We have a very great deal of experience in negotiating satisfactory financial settlements for our clients. We are accustomed to dealing with clients with complex financial affairs, including businesses, offshore trusts and family settlements. Our main concern is to ensure that robust negotiations are carried out, but that the proceedings are not unduly drawn out. If you have children, their welfare will be a very important consideration in the financial settlement.

The first step to a fair settlement, is to ensure we have a clear and accurate picture of the assets of each partner. This process is called disclosure. Both partners must make a full and frank disclosure of their financial position before negotiations can start. Once we have all the details of the assets, and agreed their values, we can then open negotiations to reach a settlement.

Most cases are settled by negotiation between the couple and their lawyers. It is normal, however, to issue an application to court to resolve a financial dispute so that use can be made of the court procedure. Sometimes this is necessary to force the issue of disclosure or to establish a reasonable time frame for the process.

Only a very few cases are actually resolved by a final hearing in front of a judge.

In divorce, judicial separation or the dissolution of a civil partnership, the court has the power to make a variety of orders:

• Periodical payments (i.e. maintenance).
• The transfer of property. This is where ownership of an asset is transferred to one partner as part of the overall settlement and given to the other.
• The payment of a lump sum.
• A pension attachment or pension sharing order. Divorce courts now have the power to divide pensions between spouses and civil partners.

The law sets out the criteria which must be taken into account when formulating financial settlements. There is no codified formula for the division of assets – it is a discretionary system. The primary consideration of the court is the welfare of any dependent child or children. The courts must also take into account in respect of spouses and civil partners your income and earning capacity, your savings, your housing needs, your pensions, the duration of the marriage or civil partnership, your overall contributions, your health and any other circumstances of the case. The court is required to balance the criteria when considering the claims of each of the partners.

Different courts work to slightly different time-tables, but generally you need to allow about a year to 18 months from the date when we make the first application to the final hearing.

Divorce courts now have the power to make orders dividing pensions between spouses and civil partners. These are called pension sharing orders. You can only divide up a pension by a court order, and not simply by agreement between the two of you.

The facility to divide pensions is extremely useful. There is often a disparity between spouses’ or partners’ pension provision, with the higher earner generally having the higher pension. The ability to share a pension means that it is now possible to divide up a future income stream other than by means of an ongoing maintenance order. In other words, pensions are treated separately to maintenance agreements.

Pensions are valued by means of a cash equivalent transfer value (the CETV). This is the figure which the pension provider would transfer to another pension fund if requested to do so. A pension sharing order provides for a specified percentage of the CETV to be transferred to the other spouse or partner.

We sometimes need to instruct independent actuaries to value pension schemes because the CETV figure does not always reflect the true value. For example, some pensions are index-linked and others are not. An equal division of pension capital does not generally produce the same level of pension for a husband and wife, or civil partners. This is because there is an assumption that women will live longer than men, and the same amount of pension capital will have to last longer.

We work with other experienced professionals on behalf of our clients in these sorts of matters.

Most pension companies will make a charge for implementing pension sharing orders. This is usually between £750 to £1,000 but the cost is generally taken from the pension fund.

Many couples live together as cohabitees without formalising their relationship by getting married or entering into a civil partnership. In fact, if you do this, you should know that under current law you have no legal rights as partners, even if you have lived together for several years. So contrary to popular belief, there is no such thing as a “common law” wife or husband.

If you and you partner are living together, we recommend you get advice about your situation. For all sorts of reasons, the law is not well-equipped to deal with cohabiting couples. This means that your wishes in the future and for the future, may not be taken into account.

For example, even if you are living together you are not considered to be your partner’s next of kin, so we recommend that you make wills to ensure that you make adequate provision for each other in the event of death. You may also want to make a Living Will, setting out what you would want to happen if you are incapacitated by serious illness.

If you have children together, then you may need to take advice about whether the father has parental responsibility for your children.

If you live in a property which you own jointly, or which is in just one name, this can give rise to complicated disputes about the extent, if any, of each person’s share in the property if you decide to live apart in the future, or in the event of death.

Some pension providers do not automatically pay a survivor’s pension to the partner they live with in the event of death.

We can draw up a cohabitation agreement, advise you on making a Will, or draw up a trust deed in relation to the property to safeguard your and your partner’s interests.

If you have decided not to marry, or enter into a civil partnership, then we recommend that you set out unambiguously, what you intend about the extent of your commitments to each other and obligations towards each other in the event of death or separation.

Same sex couples are now entitled to register the relationship formally as a civil partnership. Many same sex couples have already taken this step, and we have been happy to advise a number of our clients on the formalisation of their relationship.

The effect of entering into a civil partnership with your partner is to place you in virtually the same position as a married spouse. You have a similar position on tax, state benefits, pensions, inheritance and immigration. Children born of either partner are treated as children of your family and the non-biological parent’s relationship to the children is recognised in rights and responsibilities.

If you are thinking of entering into a civil partnership, we will advise you about all the implications. So, for example, some couples want to clarify what should happen regarding their finances in the event of separation. In this instance, you may want to draw up a pre-nuptial agreement. You must do this at least three weeks before your civil partnership ceremony takes place.

We can also act for you in the event that your civil partnership breaks down. In these circumstances you will need to apply for a dissolution, the equivalent of divorce. We can assist you through the legal process of the dissolution, and in disentangling your finances. We can advise you and represent you in the event that the arrangements for the children are not agreed.

Mediation is a voluntary process that many couples find very helpful in dealing with the breakdown of their relationship without going to court.

If you and your ex (whether previously married, living together, a same sex or heterosexual couple) struggle to talk together on your own, but want to reach agreed decisions about the practical issues that arise on separation, mediation may be the right option for you.

Mediation is not counselling. It is focused on helping you reach decisions about practical issues, such as finding the best pattern of care for your children, and the financial arrangement which is most acceptable to you both.

In mediation, you will both sit in the room with the mediator, whose job it is to be a neutral facilitator of your negotiations. The mediator does not impose decisions on you.

The process is not an easy one, since it can be very painful to sit and listen to someone you feel angry or bitter towards. It is not suitable for anyone who is afraid of their former partner.

However, the reason many people find mediation of use is that it is not handing over the power to make important decisions to lawyers and to the judges who do not know you or your children. You jointly make those decisions. This can be particularly important for your children – you may have stopped being in an intimate relationship with each other, but will have a lifetime relationship of being co-parents. Children find the burden of seeing their parents fighting over them very difficult to bear, and telling them that the decisions have been made by agreement between you can be the most important thing you do for them.

We offer mediation to all of our clients, and are happy to discuss with you whether it is suitable for you.

If you are experiencing harassment or domestic violence, you need to seek help urgently. We can give you advice about making an application to court for protection. We know these steps are often taken in very difficult circumstances, and we have helped our clients through these stages. It is important to feel supported during this time. We are responsive in a crisis and can take immediate action.

Legally binding court orders can be made without the other person being informed of your application until after the court order has been made and served on them.

These are called non-molestation orders which prohibit the other person from using or threatening violence, or being abusive, harassing or pestering you.

The court can also make an order limiting and defining the occupation of your home. So for example, it can prohibit the other person from coming into your bedroom. Or it can exclude the other person from the home altogether, even if he or she is the legal owner of that home.

Every case is different. Here are some of the steps we advise people in these difficult situations to think about:

• Report any incidents to the police
• Go to your GP if you have been assaulted
• Ask a trusted friend to take photographs of any injuries.
• If abusive messages are left on your telephone, then keep the messages.

Make diary notes so that you can recall the dates and incidents

• Childline UK – 24 hour helpline and advice for children – www.childline.org.uk
• Gingerbread – A support organisation for lone parents – www.gingerbread.org.uk
• One Parent Families -provides helpful information for single parents and their children –www.careforthefamily.org.uk
• Reunite – this organisation helps deal with child abduction and international custody disputes www.reunite.org

• Institute of Family Therapy offers psychotherapy, mediation and training – www.instituteoffamilytherapy.org.uk
• Marriage Care – (formerly the Catholic Marriage Advisory Council), aims to help people prepare for and maintain marriages and offers support if marriages break down – www.marriagecare.org.uk
• Relate – a UK based organisation offering marriage guidance counselling www.relate.org.uk