Do the parties have to involve the court to divide the matrimonial assets?
For most matrimonial assets such as the family home, in the majority of divorces the parties will reach a direct agreement between themselves and through their solicitors to record such an agreement without the need to involve the court. However, even if an application for a financial order has been made as shown in the step-by-step guide, the parties can come to an agreement at any stage during first appointment, financial dispute resolution (FDR), or the final hearing, resulting in a consent order.

However, where there are pension arrangements as part of the matrimonial assets that cannot be resolved by offsetting, the couple must apply to the court to implement any sharing of the pensions through an earmarking order or pension sharing order. This is because a third party is involved, namely a provider or scheme, that cannot act to divide a pension arrangement without a direction from the court.


Must the division of assets be decided before the divorce is final?
The application for divorce proceedings and ancillary relief proceedings are separate procedures so the granting of any financial orders against the matrimonial assets or any pension arrangements can and often does occur after the divorce is final. However, if a pension sharing order is granted before the decree absolute, then it will still be possible to apply for a variation of settlement order to prevent the order from being implemented, whereas this would not be the case after the divorce is final.

In some situations it could be advantageous to resolve the financial matters before the divorce is final and to postpone the decree absolute. For example, divorce may be detrimental to a spouses rights from National Insurance (NI) contributions, death in service benefits from pension arrangements, any rights under the former partners will or rights to remain in the family home, were this property not in joint names.


Who can apply for a financial order?
Any party of a divorce, judicial separation or nullity of marriage can apply for a financial order and the step-by-step guide shows how this process works in practice. Where the parties cannot come to an agreement over the matrimonial assets, or where there are pension arrangements to be divided other than offsetting, applying for a financial order will be the only way to resolve these financial matters.


Can pre-nuptial agreements be used to protect assets?
If the parties are not married but living together then an agreement of asset ownership between the parties will be enforceable as the courts do not have jurisdiction over non-married couples.

For married couples the court in the United Kingdom can look beyond any pre-nuptial agreement when making a final order on divorce, judicial separation or nullity as the courts have jurisdiction over the division of the matrimonial assets.

Therefore the basic rules of the Matrimonial Causes Act 1973 (MCA 73) requiring the court to have regard to the needs of both parties will still apply, irrespective of any written agreement between the parties.


When is it necessary to appoint a solicitor?
In all divorces where there are assets and pension arrangements that are significant to the parties concerned, it is important to seek professional legal advice. Any problems will usually arise when dividing the matrimonial assets and although the basic rules for ancillary relief can be found in the MCA 73, a solicitor will be able to provide expert knowledge of the decisions the courts have reached in previous divorce cases.

A solicitor will also help the party in a divorce on deciding whether to make or accept offers to settle during ancillary relief proceedings as well as working, where applicable, with a pensions expert to determine a fair value of the retirement benefits from any pension arrangements.


What circumstances would require expert evidence?
Where the matrimonial assets of a couple on divorce includes any significant and complex assets the court may have regard to, and require expert evidence, this being determined at the first appointment as the step-by-step guide shows. For pension rights a valuation other than the cash equivalent transfer value (CETV) produced by the pension arrangement provider would require expert evidence.

This would be the case where the CETV Method does not give a fair value of the members pension rights as may occur for a public service scheme, final salary pension, or Armed Forces Pension Schemes. Although the CETV from the provider would be used as a basis of valuation, a suitably adjusted CETV can be calculated that reflects the circumstances and specific needs of the parties on divorce.


Upon what basis would the court decide the division of matrimonial assets?
The court will have regard for the basic rules in the MCA 73 when resolving the matrimonial assets on divorce and in particular seek to achieve a clean break between the parties where possible. These rules direct the court to consider such matters of the parties as income, property, financial needs, obligations, standards of living, age of the parties and so on.

In addition, current case law will also influence the future decisions of the court as White v White (2000) has changed the emphasis from satisfying the needs of the parties to an equal split between the parties as the starting point of any division of significant assets.


What happens if the parties cannot agree upon a single pensions expert?
Under rule 2.61C of the Family Proceedings Rules that apply to part 35 of the Civil Procedure Rules 1998, this process is shown in the step-by-step guide, the court has the power to direct evidence to be given by one expert only.

During ancillary relief proceedings and at the first appointment, the court will consider the pension arrangements as presented on Form E and if necessary the court will require further evidence from a pensions expert. The court will require that both parties provide a list of suitable experts and the method by which the expert is to be selected.


Who can make an offer to settle during proceedings?
Either party can make a written offer to settle all or part of the proceedings relating to the application of ancillary relief. This can be done during the first appointment, FDR or the final hearing or at any stage of the proceedings. The court will expect both parties to make offers and proposals during the proceedings as can be seen in the step-by-step guide and for the recipient of the offer and proposals to give them their proper consideration.