Frequently Asked Questions on Property & Finances:

Can my ex-husband/wife make a claim on my property or finances after a Decree Absolute has been pronounced?
If you haven’t got what is known as a Clean Break Consent Order or an Order from the Court then technically they can. This is a document that sets out arrangements made in relation to finances and dismisses any further claims.

The benefit of this is that even if you do not have any finances or assets at the moment, if you were to come into a sum, through for instance inheritance or a lottery win then your partner would be unable to make a claim against you.
How much is a dispute over property and finances going to cost me?
It is very difficult to give an exact figure. The following factors can influence costs:
  • The degree of co-operation over financial disclosure. If either party fails to properly disclose assets, this can lead to increased expenditure on costs.
  • Whether or not the value of assets is agreed. If not, there can be arguments and additional work over valuing these assets including instruction of experts.
  • The speed at which settlement is reached. The earlier the settlement, the lower the costs.
  • The amount and value of assets in dispute.
What does Financial Remedy mean?
Financial Remedy proceedings are Court proceedings issued specifically in relation to property and financial matters where there is a divorce, Judicial Separation or annulment.
How are property and financial disputes usually dealt with?
A dispute can be dealt with in the following ways:

  • By settlement between the parties either by themselves or through solicitors
Clearly this is a desirable approach. The benefit of seeking advice from a Solicitor is that they can provide advice in relation to what sort of settlement would be considered a fair one by the Court in view of case law and legislation. The first stage would be for the Solicitor to obtain all relevant information as to the parties and their children. Details of the income, potential income and any actual and potential benefits should be obtained. Details of all assts with values should be obtained form both parties.

At that stage consideration should be given to settlement. If that fails or if financial disclosure has not been adequate an application may need to be made to the Court.

  • By mediation
This approach is where both couples meet with a trained mediation practitioner and try and reach an agreement together. A mediator is unable to provide legal advice as to the fairness of any settlement. This approach can be beneficial in terms of costs but again, may not be suitable for everyone if there are disagreements or if one party is more dominant than the other.

  • By Court Proceedings
If all other attempts at reaching a settlement fail then the last resort is Court Proceedings. Even if proceedings are issued however, a mutual agreement can still be reached right up until the final hearing. It is always best to try and agree as settlement that both parties can be relatively happy with than let the Court decide a settlement that neither party may agree with.
I made a Will before my divorce – is that still going to be valid?
It may not but if it is, and if you do not want your ex-husband/wife to be a beneficiary of your Will in the event of your death you should make a new Will.
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 and relevant Case Law.

Matrimonial Causes Act 1973 Basic factors to consider in relation to property and 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 is 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.

Case Law
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.
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 Consent Order. This document will set out the arrangements in relation to the settlement and if it is a clean break Order then it will dismiss all further claims between the parties. This document will then be sealed by the Court after 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 Financial Remedy Proceedings
What is a 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 Pre-Action Protocol is to ensure that:
  • Financial disclosure and negotiation takes place in suitable cases.

Where there is financial disclosure and negotiate 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 see 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 a full and frank disclosure of all facts, documents and other information relevant to their issue.

We follow the Family Law Protocol at all times.
What financial disclosure is required in financial matters?
During financial or property matters both parties will be required to provide full and frank details of their income, assets, savings property, pensions or other relevant details.
What are Financial Remedy Proceedings?
These are court proceedings that deal specifically with issues over property and finances.
What types of Orders can be applied for?
  • Maintenance Pending Suit or outcome of proceedings.
This is an application for maintenance to be paid whilst divorce proceedings are ongoing. This is sometimes referred to as interim maintenance. See further questions on maintenance for further details.

  • Property Adjustment Order.
This is an Order where one party is ordered to transfer to another their interest in property.

  • Periodical Payments Order.
This is an Order for maintenance to be paid after the final Decree Absolute. The Court can limit the duration of the maintenance or in some cases it will terminate on death or remarriage. For more information on maintenance see our questions.

  • Lump Sum Order
This is an Order for a payment of a capital payment in a lump sum, which is one payment only, which can be made in instalments or paid as one amount.

  • Pension Sharing Order
This is where the Court orders the pension provider to transfer some of one party’s pension rights to the other. For more information on Pension Sharing Orders see our questions.

  • A Secured Provision Order
These are maintenance payments which are guaranteed. The Court is obliged to specify which assets on which security is to be given. This is in effect a charge on those asses in similar terms to a charge registered on a property.

  • Clean Break Order.
This is an Order which dismisses all financial claims from either party.

In some cases there can also be an application to vary previous orders made in respect of finances if there has been a change in circumstances.
How long do Financial Relief Proceedings 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.
Do I have to apply for a Divorce to issue Ancillary Relief Proceedings?
You will have to apply for a divorce in almost all cases unless your spouse has already applied for divorce.
Will I need to go to Court?
You will need to go to Court, unless the matter is settled.
What is the procedure?
Upon making an application for a Financial Order the Court will set a timetable as to when certain documents should be filed at Court in order to ensure that the case is progressing towards an early settlement. Whilst this is ongoing, it is always our intention to try and resolve matters as quickly and early as possible, whilst at the same time full disclosure of financial matters is necessary for us to advise you and for the Court to make a decision. The process is as follows:
  • First Stage – Disclosure The parties will be required to complete a Financial Statement (Form E) in which they will disclose all of their assets, income and other financial information.
  • Second Stage – First Court Attendance known as First Directions Appointment (FDA) The first Court attendance is the first appointment when a District Judge will consider issues between the parties and will direct how the case is to proceed in the most effective way. The intention is to propose an early negotiated settlement.
  • Third Stage – Second Court Attendance – Financial Dispute Resolution (FDR) If the matter has still not settled or been agreed then the FDR is a hearing where both parties are encouraged to try and negotiate and discuss a potential settlement. The District Judge will play an active role in this hearing by listening to the arguments of each party and will usually express a view what he/she considers to be a fair settlement. If at this point a settlement is not reached, the mater will be listed for a final hearing.
  • Fourth Stage – Final Hearing The majority of cases do settle before a final hearing and very few cases get this far. In any event, if they do not settle then a District Judge will make a Court Order based upon all the evidence and submissions put by each party and their legal advice. That decision will be binding.
What ways are pensions dealt with in Financial Remedy proceedings?
There are a number of ways that a pension may be dealt with in a financial settlement, including:

  • Offsetting
This means that the value of the pension is offset against any other matrimonial assets. This method can be beneficial as it provides a clean break between the parties. However, for some offsetting could mean losing out on a substantial part of the settlement as the retirement benefits may be of more value than the matrimonial assets.

  • Pension Sharing Order.
This mans that the Court orders the pension provider to transfer some of one party’s pension rights to the other. This essentially separates the pension. The benefits are that if you receive part of the other party’s pension through a Pension Sharing Order you will have a pension of your own. Your share can go into a new Pension Scheme if you choose. Also you are unaffected by whether your former partner dies or retires and the Order is not affected by you remarrying.

  • Earmarking/Pension Attachment Order.
With earmarking, the pension benefits still belong to the pension holder, but the Court will order that the benefits that are earmarked will be paid to the other party at the same time that their benefits are paid. Earmarking has limitations and is not widely used.
Are pensions always divided equally in a Pension Sharing Order?
No, they are not always divided equally. The percentage of the division depends on the amount and value of the other matrimonial assets.
I have a high value pension, what specialist advice should I seek?
If there is a high value pension then we would recommend you seek advice from an Independent Financial Adviser or Actuary who can then provide expert evidence if needed.
Are contributions made by a parent to childcare important?
Contributions made by looking after the home or caring for the family are regarded as being of substantial importance even if the party concerned has not worked in paid employment.
Who are considered children of the family?
Children are considered children of the family in relation to Ancillary Relief proceedings if:
  • They are children of both parties
  • They are children of one party but are treated as children of the family.
I have a disabled child, does that make a difference?
It can do. Clearly the needs of such a disabled child may well be increased in terms of financial assistance. In addition, if a child is disabled and over 18 years then that child could still be relevant to any settlement which would not normally be so in the case of a child aged over 18 years of age.
My husband/wife has a business, can I make a claim on that business?
It is likely that the business will be taken into account as an asset. The following factors become important:
  • The value and nature of the business (values of business can be difficult to ascertain). Whether the claims that you have could be adequately met from other assets.
  • All other factors that have to be taken into account on deciding a financial settlement.
  • Of particular relevance to a business is whether or not the party making the claim had any involvement with the business. If they did then their claim becomes stronger.
My husband/wife and I have a joint life policy. How should that be dealt with?
There is a difference between a life policy such as an endowment policy which requires a surrender value and a life policy where a sum would be payable purely on death. If the policy has a value then this is an asset which in some cases can be considerable and must therefore be taken into account when dividing the assets of the parties.
How important are contents in a financial settlement?
In financial terms they are not important. Certainly Courts are very reluctant to get involved in disputes over contents and the costs would rapidly outweigh the benefits. The only exception would be contents of exceptional value, for instance antiques.

Nevertheless, it is accepted that certain contents may be of personal or sentimental value and therefore can be dealt with as part of the settlement.
What is the difference between income and earning capacity?
Income is the amount, you currently earn but earning capacity is the amount you potentially can earn. The Court will not only look at the actual earnings at present by the ability to earn in the future.

For instance, a parent who is currently not able to work or only work part time due to child care restrictions may, in the future be able to return to full time work and therefore this will be taken into account by the Courts.
Is my income taken into account in a financial settlement?
Yes and it would be subject to the same balancing process. For instance, if one party had a higher income than the other then their entitlement to a claim on the assets may be reduced.
I believe my husband/wife is about to dispose of an account which I may have a claim on. Can I do anything to prevent this?
You may have to make an Application to the Court. If the Court is satisfied that your husband/wife is about to dispose of an account to prevent you from making a claim they have the power to prevent them from doing so. The Court would also have to be satisfied that your claims could not be met in any other way. For instance, if there was a house of adequate value to meet your claims the Curt might feel that the account need not be preserved although it could always be taken into account in any settlement even if it had been disposed of.
Can I make a claim on account which has already been disposed of?
In these circumstances the Court may set aside the disposals. However, again the Court would have to be satisfied that the monies in that account are necessary to meet your claims. The other practical point is that if the monies have been disposed and not put into any other assets then there may be nothing that can be done. Any application would have to be made within 3 years of the transaction.
What is a Clean Break Order?
A Clean Break Order is a dismissal of claims made by either party against the other. This most likely will include a dismissal of all claims now, in the future or upon death.

It is advisable that there is full financial disclosure obtained before making the decision to enter into a Clean Break Order. In any event when the Order is filed with the Court both parties have to complete a Statement of Information setting out their financial circumstances. A District Judge will then decide whether or not to grant the Order.

If an Order has been drawn up and one party has not had legal advice, the Court is likely to list the matter for a short hearing to ensure that they have considered the fact that the settlement may not be in their best interests as they have not been advised on what they may be entitled to.

Once an Order has been granted it is legally binding upon both parties.
Can a Financial Order be varied?
No, it cannot, although in some circumstances it can be set aside.

Frequently Asked Questions on Wills:

What are Executors?
You Executors are the people that you chose to carry out the terms of your Will, and are often referred to as your Legal Personal Representatives. They can be family, friends or professional advisors such as solicitors.
What are the duties of an Executor?
Their duties are to ensure that the instructions you leave in your Will are carried out in accordance with your wishes.
I have young children. I wish to appoint somebody to look after them (not just the money) if I should die before they become 18. What should I do?
Guardians can be appointed in your Will during the years of your children’s minority.
How do I deal with the issue of my children’s residence if I die?
You may wish your former spouse/partner to have residence. We can draft bespoke provisions to balance the competing needs of both your spouse/partner and children according to your individual circumstances.
We understand that you don’t give advice on deailed tax planning but can you give any further indication as to when Inheritance Tax is not paid?
Yes we can. The following gifts are free of tax:
  • A gift to a spouse or Civil Partner who has a house in the UK. That applies either to amounts in your Will or made in your lifetime.
  • It can be a gift if you give to a “qualifying” charity.
  • If you survive for 7 years after making a gift to somebody, that gift is generally exempt from Inheritance Tax. If you die between 3 and 7 years after making the gift then tax is at a lower rate.
  • You can give up to £3,000.00 each year. That is in addition to any other exemption.
  • You can make small gifts of £250.00 to as many individuals as you like each year.
  • If you give to somebody who is getting married or registering as a Civil Partnership then that gift can be exempt upto the sum of £5,000.00.
  • If the estate contains a business, Woodland or National Heritage property then there is relief form Inheritance Tax.
  • A further way of mitigating Inheritance Tax can be to set up a Trust. However, we must make it clear that we do not advise on Trusts. This is a complex area where you would need to seek further professional advice.
Is there a further website which will give information on Inheritance Tax?
Her Majesty Revenue and Customs has a very helpful website. This is: www.hmrc.gov.uk/inheritancetax

Frequently Asked Questions on Personal Injury:

Can I make a claim for compensation?
If you have been injured in an accident due to the fault, or partial fault of another party, you are entitled to claim compensation.
Are there any time limits to bring a claim?
Yes. The general rule is that you have 3 years from the date of the accident to start a claim at Court. In certain circumstances, the court have discretion to extend this period of time. In the case of children who have had accidents, they have to start court proceedings before their 21st birthday. The area of time limits are complicated, and its always wise to have a chat with one of our experts. For example the time limit for a Criminal Injuries Claim , an accident relating to boats, ships and planes (including boarding ) is only 2 years.
What can I claim for?
Compensation claims are made up of several parts. Firstly, we claim compensation for the pain and suffering you have experienced as a result of the accident. How much this will be, will be dependent upon your particular case, and its therefore important that you have a specialist solicitor that can advise you as to the value of your claim. Secondly, you are entitled to claim your out of pocket expenses, that have arisen from out of the accident. For example, loss of income, medical charges, travelling expenses, payment to a loved one, who has provided you with care after the accident. Finally, you are also entitled to claim for predicted future losses eg reduction in income, care, treatment charges etc
I have been told by other people that it could take years to sort out my claim?
The length of time it takes to complete the claim, depends on many factors, including the co-operation of the other side, the value of your claim, and the complexity of the claim. In straightforward claims, the government has tried to speed up the process, and it is possible with the smaller claims that we deal with, that they can be completed within months, as opposed to years. We will aim to deal with your case as quickly as possible, but will never compromise the quality of our service.
Will I have to go to court?
This is very unlikely. The vast majority of the cases that we deal with, are resolved in the client’s favour, without you having to go to court.
I have had an accident at work, will I lose my job?
There is no need to feel worried about making a claim against your employer. The employer, by law, has to have an insurance policy in place, to cover accidents at work. Most employers make use of this policy to help you with your recovery. Even if your employer does not approve of you making a claim, you may have protection from the Employment Law, and few employers would be willing to risk a further claim against them, for unfair dismissal. We will discuss the implications with you, at the initial no obligation meeting.
I believe that I have developed an illness as a result of working for an employer, that is no longer in existence, and I worked for them over 3 years ago – am I out of time to bring a claim?
Not necessarily. Industrial disease cases are very complicated. Even if your employer has gone out of business, we may be able to trace a relevant insurer for that period of time. The time limits to bring claims for industrial disease, usually starts from the date of knowledge, in other words when you realised that your medical problem related to your work conditions. In certain circumstances, where the employer and the insurance company cannot be traced, there are government schemes available for compensation. Again, this is a very complicated area of law, and you need to talk to one of our specialist solicitors.
I have had a car accident that wasn’t my fault, but the other party was uninsured. Does that mean I won’t be able to bring a claim?
You will be able to bring a claim. There are various schemes run by both the government and insurance companies, that we can assist you with in bringing a claim.
I have been involved in a car accident, and the other party drove away, and cannot be traced – can I still bring a claim?
Yes, you can still bring a claim. You will need to report the matter to the police straightaway, and providing you do this, we can help you make a claim for compensation.
I have had an accident that is not my fault, my insurance company are insisting that I go to a solicitor of their choice, do I have to?
No, absolutely not. Whatever your insurance company may tell you, you have a choice. So before you make a decision, take advantage of a free, no obligation appointment or chat, with one of our Personal Injury experts.
Do I have to come in to see the solicitor?
No. Of course, you are very welcome to come in, and we encourage people to come to our office to meet us and to talk about your claim. However, it is possible to deal with the matter over the telephone, and by email. We would also be happy to see you at your home, place of work, or hospital.
Why do I not receive 100% of my compensation?
The law changed on 1st April 2013. Solicitors are not able to recover all their fees from the Opponent. This means, when the case is won, they will charge a fee, but that fee will never exceed 25% of compensation. In addition, if you have taken out an insurance policy the premium will have to be paid in addition to the 25%, if the case is successful. Again, we will discuss whether you need to take out an insurance policy, and the costs of the same with you.
Will I have to pay anything if I lose?
We will do everything possible to ensure that you win. In the unlikely event of a loss, with the package available at PHH Solicitors, you will not be responsible for payment of any legal costs, either your own, or the other side’s.
Why choose PHH Solicitors?
We believe that we are good at what we do, we will offer you a personal and professional service, and ensure your claim is dealt with by qualified people. Only you can be our judge, so why don’t you take advantage of a no obligation, free initial interview and make up your own mind.