How to negotiate the division of Matrimonial Assets in Divorce

The Divorce, Dissolution and Separation Act 2020 has removed some of the bitter legal battles over the grounds for ending a relationship; however, the issues of the child and financial arrangements remain. Often these issues are the most divisive and can lead to prolonged disputes.

There is no prescribed legal ruling on how matrimonial assets are divided, there is a presumption of a 50/50 split as a starting point in the division of the assets of a marriage but this depends on a wide range of factors including the income and earning capacity of the parties, length of the marriage or civil partnership, financial needs, the standard of living enjoyed by the parties, age of the parties and the contributions made by each party towards the relationship. This requires in-depth consideration to arrange a settlement.

There is an expectation by the Courts that the couple should negotiate between themselves and come to a satisfactory arrangement that they both can live with. In reality, the division of matrimonial assets can spiral into a costly and prolonged exercise. 

Daniel Theron, a partner in the family law department, commented “the fastest and least costly way to settle the question of the division of matrimonial assets, if there is no initial agreement, is by alternative dispute resolution (ADR)” Daniel further pointed out “it is far better to come to an agreement through mediation where the discussions and the decisions remain with the former spouses as opposed to a judge, where perhaps more consideration can be given to what each party wishes to gain”

There are different ways of arriving at a sound financial settlement after divorce.

If proceedings have been issued, the Court will list a Financial Dispute Resolution (FDR) hearing, which offers the best chance of swiftly arriving at a solution. Should this be unsuccessful, a financial hearing will be listed, and the Court shall make the decision. This is a “without prejudice” hearing in a Court before a judge. Each party must make full financial disclosure about their assets and their financial position with supporting evidence. The judge will review this evidence and the proposed settlement that each party is presented. The judge’s role is not to make a decision but to encourage the parties to come to an agreement. The judge will give an indication as to their opinion on the matter and what they would do if they actually were making a decision. The judge’s view is a strong signal as to the possible outcome if the matter is eventually to be decided by the Court. It is possible to arrange a private FDR, following the same structure but without issuing financial proceedings. In this instance, the parties can avoid the delays associated with listing the matter and reach a potential settlement more swiftly.

The parties can leave the court and further discuss the issues with their legal advisors should no agreement be reached at the FDR. If a decision can be arrived at the legal advisors can draft an agreement for signature and the judge will approve and make a final order.

As with FDR, mediation enables the couple to undergo negotiations in the presence of their legal advisors. In this instance, the discussions are private and not in a Court, without prejudice to potential litigation in most instances, with only a limited number of exceptions. Mediation enables the couple to keep control of the outcome and come to their own agreement as opposed to the matter being taken out of their hands leading them to be bound by a judge’s decision. This outcome can often be more suitable to the parties if they actively engage and express what works for them, with concessions bound to be made. Hybrid mediation offers the opportunity for both parties to attend with an independent mediator and their own legal representative to guide them through the process. Giambrone & Partners’ family law department has extensive experience in drafting financial settlements and have had innumerable successes when successfully negotiating favourable financial settlements after divorce. Our lawyers recognise the sensitivities and the importance of financial settlements to all parties and understand that settlement is not a one size fits all approach.

Daniel Theron, advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

If you would like legal advice and assistance with regard to the financial arrangements in connection with the division of matrimonial assets please contact Daniel's clerk Sam Groom SG@giambronelaw.com or please click here.