Amicable divorce financial settlements

Basic Principles of an Amicable Divorce Financial Settlement

An amicable financial settlement is something that a divorcing couple may be able to achieve in cetain circumstances to save them the stress and expense of a trial in court. Essentially the aim is for a divorcing couple to try and reach agreement to divide their assets when divorcing and to encapsulate their agreement in a legally binding document that protects them both. An amicable settlement usually requires you to be a reasonably decent talkingterms with your spouse. Where relations are very emotional and difficult, reaching an amicable settlement becomes more difficult. However; it is highly recommended that you consult an expert family law solicitor as soon as possible in the process and make sure that the solicitors you consult are members of Resolution. Resolution members have committed to try always to help clients reach an amicable settlement wherever possible. This makes the process of divorce easier and more cost effective for both parties.

When considering a financial settlement on divorce, there are several factors that need to be decided, these include:

Child Support

Where there are children involved then some kind of child maintenance will usually be payable by the non-resident parent. As a general rule the Child Support Agency guidelines suggest that the non-resident parent should be making a contribution of 15% – 20% of their net monthly salary by way of child maintenance. However; the number of days a month the child spends staying with the non-resident parent also needs to be taken into account and deducted from this payment. Parents can of course always agree a figure for child maintenance that is more or less than the guidance figure, but that needs them both to agree.

Spousal Maintenance

In some circumstances spousal maintenance may be payable. This is usually not something that anyone who is getting divorced usually wants to pay, but the law may demand that it is paid, at least for a while. For example, if your spouse has never worked outside the home and needs time to get the training needed to land a job to support themselves, they may need some spousal maintenance, whilst they get themselves on their feet. Most people will not want to pay spousal maintenance but, if your spouse makes an application to the court, you may be ordered to pay it. By discussing it between the two of you, you have more of a say in how much you will pay and how long you will continue to pay it.

Division of Assets

The most conntentious aspect that needs to be considered is the division of assets of the marriage. These assets will usually comprise the house, cars, savings, stocks, and items inside the house, or anything that was bought or acquired during the marriage and any businesses. Nobody ever wants to share these assets when a marriage breaks down, but the law simply dictates that each of the parties to the marriage are entitled to a share of the assets. Therefore, living in denial will simply result in protracted and potentially costly court proceedings. It is best to be reasonable and make a sensible offer to your spouse. If it does go to court, the spouse who makes the least amount of money and has custody of the children is more likely to receive a majority of the assets though the English legal system. There are many ways of splitting the assets and you can give more of one thing and less of another to help balance out the position. Often you will need to consider selling the largest asset, usually the family home, and splitting the net proceeds of sale between you. Of course the percentage split will depend on your circumstances and no two cases will ever be the same. Expert advice from a family law solicitor will be invaluable at this stage. Make sure you always get the best possible advice and remember that ‘cheap’  advice will invariably mean ‘poor’ advice. A good solicitor will be able to help you argue your corner much better and in the longrun can save you a huge amount of money.

Once you feel that you have agreed the basics of a financial settlement, an expert family law solicitor will help you to draw up a legally enforceable agreement called a ‘consent order‘ which will be filed at the court on your behalf. We can usually conduct this work on your behalf. In a relatively straightforward situation we offer a fixed fee of £500 plus VAT, plus court fees for this service.

We also offer a free 30 minute telephone consultation with no obligation on your part. During that free consultation we will advise you of the law and help you assess your circumstances and suggest a way forward for you. We will also be able to tell you what our fees will be for conducting your work and will usually be able to offer you a fixed fee option which most clients prefer. Call us during normal office hours on 020 8401 7352 for your free 30 minute telephone consultation.

For more information on consent orders and amicable divorces see our articles on:

Divorce & Consent Orders

Challenging or Appealing a Divorce Consent Order

Divorce & Costs

Clean Break Orders in Ancillary Relief Proceedings

Uncontested Divorce Guide

Grandparents Grandchildren and Residence Applications

Cyrus Mansouri, Solicitor, reviews recent developments affecting the legal status of grandparents in Children Act 1989 proceedings for Residence and Contact.

Grandparents have an vital role to play in the upbringing of children. However; often when parents separate, the custody of the children can become an issue and an area where grandparents feel increasingly isolated and ignored. The courts in England & Wales do recognise that contact with a grandparent can be beneficial for children but the complextities faced by grandparents wishing to have residence of their grandchildren are often significant. Grandparents Plus conducted a study of the role played by grandparents in the welfare of their grandchildren and found that almost one in three families rely on grandparents for child care, with almost half of all single parent households relying on grandparents to help out with childcare. Despite this the Children Act 1989 does not provide particular rights to grandparents wishing to apply to court for contact with their grandchildren or, as is often the case, to apply for a residence order asking that the court order that the children reside with the grandparents after the breakdown of their parents relationship. 

Research by Families Need Fathers indicates that some 42% of grandparents lose contact with their grandchildren when the childrens parents separate. Clearly therefore there are huge numbers of grandparents wanting to have contact with their grandchildren and not being assisted directly by the law. In this article I consider the position for grandparents seeking to apply to court for an order to have their grandchildren live with them.

When deciding where a child should normally live after separation, the courts generally take the view that, where possible, the children should remain with the parents to whom they were born. However recently the case of B (A Child) [2009] UKSC 5 re-asserted the importance of the welfare principle as the paramount consideration when making decisions regarding the upbringing of the child, and stated that the presumption in favour of the natural parents, although still a consideration, is secondary and that the primary consideration should always be the best interests of the child. This case will have huge implications for grandparents and possibly even other relatives, seeking residence orders or even contact orders in respect of their grandchildren. 

The Government has published a Green Paper ‘Support for All – the Families and Relationships’ and makes proposals for additional support for adults and children following the breakdown of a relationship. A number of these proposals are directed towards grandparents, including proposed reform to improve their ability to apply for contact. 

Therefore the current law surrounding the rights of grandparents is evolving. The current position is summarised below, however; as with any legal issue, you are advised to seek specific advice from us applicable to your circumstances as this article only sets out the general principles.

The Requirement for Permission of the Court

Often contact between a child and grandparents can be negotiated away from the courts and amicably. However in many situations this simply never happens, not least because of animosity between the parents and perhaps very poor relations. Sadly substantial numbers of grandparents lose all contact with their grandchildren after the childrens parents separate, and many of those grandparents are now turning to the Children Act 1989 to obtain orders for a defined contact order. 

Sadly, grandparents do not have an automatic right to apply to court for contact as parents have. Grandparents require leave of the court meaning permission of the court to apply for a section 8 order, unless they already have a residence order, or the child has resided with them for a period of three years or more or where the grandparents already have the consent of those with parental responsibility, being usually the natural or adoptive parents. Infact you do not need to be a grandparent to seek leave of the court as anyone who can satisfy these requirements can apply. There are no presumptions made by the court for or against such applicants. The courts will always investigate each case on it’s merits and the courts will look closely at the surrounding welfare of the child which is the most important factor. Clearly the greater the involvement of the applicant in the child of the life and the stronger the ‘bond’, then the greater the strenght of such an application.

In practice applying for leave is not usually the biggest hurdle where the case has other merit. However; many grandparents quite rightly ask why they should have to apply for leave at all? Some grandparents have exceptionally close relationships with their grandchildren and merely having to seek permission of the court to apply for contact can seem unfair and be a ‘put off’. In my experience many grandparents are simply unaware of their rights in respect of exercising contact with their grandchildren and very often they place too much reliance upon the parents hammering out an agreement between them, which sadly often never materialises or, more likely, takes a very long time. Therefore part of the challenge is educating grandparents about the rights afforded to them in law when their children separate and they wish to maintain contact or perhaps even more, residence of the grandchildren.

The Government has published a Green Paper called ‘Support for All – the Families and Relationships’ which suggests a package of proposals to improve the legal position of grandparents. One of these proposals is to remove the requirement to apply for leave by grandparents and to permit applications for section 8 orders by grandparents automatically. The changes proposed will require an Act of Parliament to take effect. The purpose of a Green Paper, is to invite suggestions, comments and contributions. These proposals are to be welcomed, not least because they will encourage grandparents to play a bigger role in the welfare of their grandchildren and, in turn, these proposals will reduce the costs of such applications for grandparents. There Green Paper also invokes a consultation as to the impact of the leave requirement on other family members. The Green Paper does not stop there either and, goes forward to suggest proposals for improving the accessibility of children’s centres and increasing the advice and support available for grandparents in caring for grandchildren. 

Residence Orders and the Presumption in favour of Natural Parents

Until now there has been a presumtion by the courts in favour of the childs natural parents in applications for residence by grandparents. However all of this was recently thrown into question in the case of the Supreme Court in Re B (A Child) [2009] UKSC 5 has placed the natural parent presumption in an important context and challenged the perceived weight of this argument. In this case the child had lived with his maternal grandparents almost constantly from birth and was 3 years old at the date of the appeal. The childs mother was unable to provide suitable parenting and, the father, having enjoyed contact with the child, applied for a residence order that the child should now be living with him. Initially the lower courts had found in favour of the childs grandmother, the father appealed that decision and was successful in the Court of Appeal in overturning that decision, however; the maternal grandmother appealed to the Supreme Court where her appeal was allowed. The Supreme Court stated that :

‘All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.’

The Supreme Court was cautious to state that this was not necessarily a move away from the old law, but that it was an endorsement of the ‘welfare principle’. However; this decision removes the widely held perception in residence application by grandparents that there must be some compelling reason for the court to move away from the almost automatic presumption in favour of the natural parents. What this means in practice is that although there is still a view that there are clear advantages to a child being brought up by the natural parents, this is no longer the determining factor in residence applications brought by grandparents. There is in effect a much wider balancing exercise that must be carried out by the courts in assessing what precisely is in the best interests of the child.


The role played by grandparents in the upbringing of a child cannot be overlooked. Many parents rely on grandparents to lend a hand in looking after their children and in providing child care and any loss of that bond for the child after the breakdown of the parents relationship is clearly damaging. The current legal position of grandparents appears to have been strengthened by the case of Re B. The courts are now looking at such cases in their entirety when determining where the child should live and assessing the best outcome for the child, whilst placing less automatic reliance on the natural parent presumption. Re B represents a significant milestone in the recognition of the importance of grandparents in assessing the welfare of a child. 

The proposals outlined in the Government Green Paper are to be welcomed as they too provide for an opportunity for children to maintain lasting relationships with their grandparents after family breakdown. There may now be a move toward making applications for residence by grandparents less gruelling by recognising that family breakdown can have a harrowing effect on children and very often grandparents provide the essential bond that helps to maintain stability for the children whilst the parents resolve their differences.