What factors should be taken into account when negotiating a settlement?
We would have regard for the factors set out in the Matrimonial Causes Act 1973, The Family Proceedings Rules 1999, the Family Law Protocol and case law as well as the individual requirements of the client and their children.
Matrimonial Causes Act 1973
Basic factors to consider in relation to property & finances as listed in the Act include:
- The welfare of any child of the family who has not reached the age of 18
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the future
- The financial needs, obligations, responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of each party to the marriage and the length of the marriage
- Any physical or mental disability of each of the parties to the marriage
- The contributions made by each party to the welfare of the family, including any contribution made by looking after the home or caring for the family
- The conduct of each of the parties if that conduct us such that it would, in the opinion of the Court, be unfair to disregard it
- The value to either of the parties to the marriage of any benefits (for example a pension) which because of the divorce that party may lose a chance of acquiring.
- The Family Law Protocol
- This is a guide produced by the Solicitors Regulation Authority, a division of The Law Society that provides solicitors with guidance as to what needs to be considered in relation to property matters. As part of the Family Law Protocol guidance is given on how to proceed in matters before a Court application is issued, this is known as the Pre-Action Protocol.
The Family Proceedings (Amendments) Rules 1999
This is a set of rules for the Courts to follow with the aim of enabling them to consider property and financial matters fairly, giving consideration to:
- Ensuring that the parties are on an equal footing Saving expense
- Dealing with the case in ways which are proportionate
- To the amount of money involved
- To the importance of the case
- To the complexity of the issues
- And to the financial position of each party
- Ensuring that it is dealt with quickly and fairly, and;
- Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
There have been cases where Judgments have been made in relation to property and finances, which have influenced further cases and can cause a change in the law. Whilst the Courts always have to look to the relevant legislation, there can be different interpretations of legislation by different Judges, which can mean different rulings.
How long does negotiating a settlement usually take?
It is not possible to give an exact answer because the length of time can depend on so many factors including:
- The time taken for the other party to provide financial disclosure;
- The amount of issues that are disputed
- The amount of assets and finances to be divided
- We always give an estimate, based on the information we have at the time, of the likely length of time that the case will take when we are instructed.
If we make a settlement without going to Court how can it be recorded?
It can be recorded in a document called a Clean Break Consent Order. This document will set out the arrangements in relation to the settlement and dismiss all further claims between the parties. This document will then be sealed by the Court after a Decree Nisi is granted.
What if negotiations fail?
If negotiations reach a point where matters cannot be resolved then issuing an Application to court may have to be considered. These are known as Ancillary Relief proceedings.
What is the Pre-Action Protocol?
This is a guideline for solicitors, which is part of the Family Law Protocol. The Family Law Protocol is a set of rules that Solicitors should follow, produced by The Solicitors Regulation Authority, which is a division of The Law Society. This document deals with the procedure before a Court application is issued.
The aim of the Pre-Action Protocol is to ensure that:
- Financial disclosure and negotiation takes place in suitable cases;
- Where there is financial disclosure and negotiation it is dealt with:
- Cost effectively
- In line with The Family Proceedings (Amendments) Rules 1999
- The parties are in a position to settle the case fairly and early without litigation.
The document is very lengthy and covers many issues the basis is as follows:
- Solicitors should consider the possibility of mediation
- Solicitors should consider using a Court timetable, even if proceedings are not issued to ensure that matters are dealt with promptly and in a correct format
- Solicitors should consider court action as a last resort
- The initial letter written in relation to finances should be approved of in advance by the client unless stated otherwise.
- Solicitors should recommend the other party seek independent legal advice in their initial correspondence.
- A Court Application should not be issued when settlement is a reasonable prospect
- The protocol underlines the obligation of both parties to make full and frank disclosure of all facts, documents and other information relevant to their issue.
We follow the Family Law Protocol at all times.