Dividing lives: financial and custody arrangements on divorce

Quite apart from the emotional upheaval of deciding to end your relationship, the prospect of detangling your finances after years or even decades spent with your ex-partner can be a daunting and stressful one. Moreover, decisions regarding the shared custody of any children you have together can be emotionally charged and difficult to agree upon.

The first step to making the best choices when it comes to dividing your finances and the custody of your children is to understand the various legal forms such decisions can take. In this article, we explore how couples can arrive at legally binding agreements that benefit all the parties involved.

Agreeing between yourselves

The best option will usually be to come to an agreement out of court, as court proceedings can be both slow and expensive. If you can’t agree by yourselves, you can try alternative dispute resolution (ADR) options such as mediation, collaborative law or arbitration. Even if you feel that going through the courts is your only option, you will usually be expected to show that you have attended a mediation information and assessment meeting (MIAM), which is designed to inform couples of the benefits of reaching an agreement with the help of a trained and independent third party called a mediator. Whichever path you take, you should appoint an experienced family law solicitor to guide you.

Your financial negotiations should take account of any property, money, savings, investments and pensions you both have, while arrangements for children  should be centred around your child’s welfare. Once you reach an agreement, your solicitor will be able to apply to the court on your behalf to make your financial agreement and arrangements for your children legally binding.

Taking your divorce to court

Remember that taking your divorce through the courts can be slow, expensive and stressful, so it is advisable to consider the various ADR options available if at all possible. Sometimes ADR will not be an appropriate option for you, or your attempts to agree out of court may have failed. In this case, a judge will have to decide for you.

A court will always consider the following factors when deciding how to separate your financial affairs and arrange child custody:

• The welfare of your children
• The circumstances surrounding your marriage (including how long you’ve been married, your current lifestyle and your respective assets and resources)
• You and your ex-partner’s current and future financial needs
• Whether you and your ex-partner could become completely financially independent.

Court Orders

Agreements about the division of your finances and the care of any children can be made legally binding through a court order. Your solicitor can apply for this if you settle out of court, or it can be handed down by a judge.  

Consent Orders make your financial arrangements legally binding. They will outline how your assets are to be divided and can also outline short-term arrangements for child maintenance. Longer-term arrangements must be made through the Child Maintenance Service (CMS).

Clean Break Orders are a type of Consent Order used by couples with no assets to divide, possibly  because they haven’t been married for very long. A Clean Break Order ends a couple’s financial obligations to one another and ensures neither party can make a financial claim against the other in the future.

Child Arrangements Orders outline where your child will live, how any time they spend with each parent shall be divided and the type of contact each parent is entitled to.

Specific Issue Orders contain legally binding instructions for your child’s upbringing and welfare. If you want your child to have a religious education, or not have a Covid-19 vaccination, for example, this is something you would put into a Specific Issue Order.

Prohibited Steps Orders legally prevent one or both parties from making certain decisions relating to your child’s welfare, for example taking them out of the country without advance notice, or from changing their school.

The importance of legal advice

Taking legal advice will ensure that you obtain the financial settlement to which you are entitled, that your child’s welfare is put first at all times, and that nothing is forgotten (for example a Clean Break Order) that may lead to problems in the future. For sympathetic and practical legal advice, get in touch with Belinda Strange at belinda.strange@attwaters.co.uk.