This page contains a Flash digital edition of a book.
essence legal


The importance of good quality legal advice


Sarah Duckworth, a Partner at Mundays, and Eleanora Newbery look at the importance of obtaining good legal advice when it comes to financial disclosure during divorce negotiations and the legal options available to married couples wishing to part amicably.


£2m with no mortgage and my husband says we should simply sell it, split the proceeds and go our separate ways. We are both in our 50s and I haven’t worked since we had our children (who are both now at university). My husband has a business, but says he has no income (and that he has borrowed money from his family to keep us going that needs to be repaid). I know the business hasn’t been particularly successful yet, but I still believe his product has potential as it is a good invention which he has patented. I believe he is likely to inherit a lot of money or that he has an interest in a family trust. Since we have separated he has been playing his cards close to his chest about money matters. What should I do? I am concerned about how I will manage to buy a house and provide an income for myself going forwards. I have no inheritance prospects and no pension.


Q


homemaker and your husband as breadwinner. A starting point for division of the assets will therefore be an equal division. That may or may not be the end point. The court has to consider your respective needs which are similar on the face of it, ie for a home and an income. If you each were to receive £1m that could be sufficient to provide a home and an income for you, albeit more modest than the standard of living you may have had during the


A 52 www.essence-magazine.co.uk


After a long marriage a court will take the view that you have both made an equal contribution – you as


My husband and I are living separately and intending to divorce. Our house is worth about


marriage. I think, however, that you do need to make further enquiries about your husband’s financial position before accepting at face value what he says. If you take advice from a good family solicitor they will ask pertinent questions of your husband rather than take things at face value. This process of asking for further information and any relevant documentation is called ‘disclosure’. You are both under a duty to give to each other (and to the court if there is an application to the court) full and frank disclosure of your financial position. For example, a good family solicitor will ask probing questions about any interest your husband may have in a family trust and will go through your husband’s financial documents, such as bank statements, carefully and with a forensic eye. It may be there is money paid into bank accounts from a trust or income from his business. It will also be necessary to consider the exact position regarding the business and he will be asked to provide business accounts for the last two or three years. It may be necessary to ask an accountant to provide a report about the business and what the income potential is, whether there is cash in the business and whether there is a value to be attributed to the business and the intellectual property, ie the patented product. You do not say if your husband has any pensions. If so your solicitor will want to know what they are and it will be possible for there to be pension sharing orders (again a starting point would be an equal division of the pensions). It may well be that if your husband can be shown to have some income potential or any trust interest (even


if he is a discretionary beneficiary and his share is impossible to guarantee or quantify), as well as a potential capital value to his business, the court is more likely to take the view that you should have more than 50% of the matrimonial assets. The bottom line is that you should get at least 50%, but as I say, it is certainly worth taking advice as your future security needs to be taken seriously and depends on you obtaining the best settlement now that is reasonably possible. A good family solicitor will be careful to try and ensure your legal costs are proportionate as it may be the disclosure process does not prove fruitful and your husband may not have additional resources. In that case an equal division may well be a fair one, but you should at the very least in my view take legal advice and have proper and full disclosure before you negotiate any agreement.


Q


My wife and I have been married for over thirty years, but our children have now grown up and


we no longer have anything in common. We have different interests and rarely socialise together. We sit in separate rooms to watch television in the evening and have slept separately for over five years. My wife raised the topic of separation with me last week and I realised I had been burying my head in the sand. We talked about it and both agreed we would like to separate. In lots of ways we both recognise how sad this is and what an impact it will have on our children, even though they are grown up. We have not fallen out in any way and neither of us has any thoughts of moving


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84