Financial mediation in divorce

Divorce financial settlement mediation

One of the main areas discussed during mediation is how finances are to be divided between separating couples. It is very common for divorcing couples to use mediation before they receive their decree absolute, so that a financial agreement can be reached prior to the divorce being finalised. It is likely your solicitor will have recommended that you attend mediation to do this. Attending mediation will result in you either reaching an agreement, or receiving the mediation certificate, which you can then use to make a court application. The goal of mediation is so you both can make a self-determined decision on your finances without having to use a Court. Remember that at Court a judge will make the decision for you and you won’t be able to change it (well, not easily)!

You do not have to be a divorcing couple to use mediation to discuss finances, we also support cohabiting couples. Whilst the legal protection for cohabiting couples differs from married couples, there is still scope to discuss the future of finances at mediation. More and more couples are choosing to cohabit rather than marry. Cohabiting couples may well live like married couples for many years, sharing finances and responsibilities. If you are a separating cohabiting couple, mediation may be able to help you settle your finances going forward and in the future.

Mediation is a very useful way of discussing your finances and your proposals. Many participants find that using mediation allows them to reach an agreement as to how finances are to be arranged following separation. One of the most common questions that we get asked by clients in financial mediation, is what finances and assets are included and what they need to bring with them. Your mediator will explain this to you during your first session, but it can be useful to have some information before you come so that you are prepared. As part of the financial mediation process, both participants must provide full and frank financial disclosure.

What is Full and Frank Disclosure?

This means that both parties must declare all finances and assets, so that it can be agreed how these are to be settled following your separation. It is a process where both participants will share with one another details of all of their finances and assets. It is necessary for there to be full and frank disclosure for any of your agreements to be ultimately legally binding. The reason for this is at court, if you are found to have not disclosed all of your finances, or have provided false disclosure, then any Order could either not be made or set aside and proceedings could be taken against you.

Your mediator will provide you with a financial disclosure booklet which you will need to complete before your first session. In addition to this, you will need to bring a number of documents which we list below.

What do I need to bring with me to my first session?

Here we have written a list of all the documents that may need to be brought to your first session. Some may not be relevant to you, so if they are not, do not worry. 

1. Family home: If you are coming to mediation to discuss the assets within the family home, then for any property that is being discussed you must bring with you three new valuations for the properties. A good way to do this is that participant 1 gets a valuation, participant 2 gets a valuation, and then the third is chosen jointly.
2. Mortgage statements: You must also bring up to date mortgage statements for any properties in dispute that are subject to a mortgage. They must cover the last three months.
3. Bank accounts: Any accounts that are held must be evidenced with statements from the last three months. This includes both sole and joint accounts.
4. Savings: Similarly, you will be required to bring up-to-date statements for any savings accounts.
5. Investments: If you have any investments, you will need to bring documentation that shows the up-to-date value of these.
6. Other assets: Additionally, you may be coming to mediation to discuss high value assets, such as cars, paintings, boats, furniture, jewellery, watches, etc.) If this is the case, you will need to bring documents that show the value of these items.
7. Business interests: If you have an interest in any business, you should bring the business accounts that cover the last 2 years. Furthermore, you should also bring documentation that confirms the value of the business.
8. Life insurance: If you have a life insurance policy, you must provide documentation that shows the surrender value and the terms and conditions.
9. Private pensions: For any pensions, you must get a cash equivalent transfer value (CETV) of the pension. You should contact your pension scheme provider for this.
10. State pensions: You should also bring a “State Pension Forecast”, which you can obtain by completing forms BR19 and BR20, which can be found online.
11. Debts and liabilities: Where any debts or liabilities are held you must bring up to date statements that show the amounts owed. This does not include overdrawn bank accounts, but does include credit cards. Your overdrawn bank accounts will be shown through your bank account statements (point 3).
12. Income: If you are receiving PAYE income, you must provide your latest P60 and your payslips from the last 3 months. If you are self-employed, then you should provide your latest tax return or a letter from your accountant showing your earnings and tax payments. You may be able to access this information by setting up/logging in to your Government Gateway Account.
13. Welfare benefits: If you receive any benefits, you must provide details of this. You can get this by contacting the DWP.

How does financial mediation work?

Exchanging financial documents means that all the documents are shared between the parties involved. This is a necessary step and is part of the full and frank disclosure requirement.

In mediation, your mediator will not facilitate the exchange of your documents, you must do this independently. For example, you should email to each other all the relevant documents and copy in your mediator so that they have access.

We have all, in one way or another, become just a little more tech savvy during the pandemic, which has allowed us to use new means of mediating. In terms of exchanging financial documents, a really useful way of doing this is to set up a Google Drive, or Dropbox folder, which is accessible by you, your ex-partner and the mediator. This is a secure file that can only be accessed by those given permission and means that all the documents are in one place.

You can discuss this with your mediator during your MIAM or your first session. Remember it is very important that all finances are declared and all the relevant documents are shared, as this can delay the overall process.

What can I expect to happen at mediation?

When you proceed with your mediation sessions to discuss your finances, your mediator will support you and your ex-partner to create an agenda of things to be discussed. This agenda will form the basis of your mediation, and you are in control of it.

The role of your mediator is to facilitate your discussions and support you to come to agreements. Your mediator is impartial, so they will never take sides and they will never make a decision for you. Your mediator will also not provide you with legal advice, though they may provide you with legal information. In financial cases, it is recommended that you seek legal advice on your financial proposals alongside mediation itself.

What happens next?

Open Financial Statement

Once you have completed your financial disclosure booklet and have provided all the necessary documents, you will then begin the mediation process.

When mediating about finances, your mediator will produce something called an open financial statement. This is based on the information that you have provided and will contain all of the finances and assets for both participants, both solely and jointly held. This is a useful document and is an open document, which means that it can be presented to the court should you need to. You should take your open financial statement to your solicitor before doing this, if you have one.

Your open financial statement will form the basis of your mediation in that you will identify the finances and assets, which you are looking to agree on. You may choose that some assets are shared, and others are kept by the sole holder. Mediation is a self-determined process so you will decide how the finances are to be arranged.

Memorandum of Understanding

Participants who successfully agree upon financial arrangements during mediation will decide how the finances and assets within the open financial statement are to be shared. Once you have reached these agreements, your mediator will then produce a memorandum of understanding.

The memorandum of understanding is a legally privileged document. This means that it cannot be relied on in court and is not legally binding. It is a detailed summary of all of the proposals that you will have made during your mediation. If you have mediated on finances, it will therefore include in detail how you propose to settle this.

Whilst the memorandum of understanding is subject to legal privilege, it does form the basis of your proposed agreement. What you should do with this is take it to your respective solicitors, if you have one, and discuss the proposals with them. Once you have been advised by your solicitors they will, if the agreements are fair and reasonable, draft it into a consent order, which can then be ordered by the Court when you finalise your divorce process.

What if we don’t reach an agreement in a finantial mediation in divorce?

Sometimes participants at mediation do not reach an agreement. This could be because the mediation process is not appropriate for you, or there are particular finances that you cannot agree upon. In these circumstances, court is the last resort, and you can make an application by using the Form A. To enable you to do this, your mediator will provide you with the mediation certificate – you can read more about the certificate.

If mediation does not go ahead, then you should seek legal advice and then consider making an application to the court for a financial order. You can use the open financial statement to assist you in doing this as it will detail all of the finances that are to be discussed.

Conclusion

Mediating about finances is a structured and favourable way for you and your ex-partner to decide how your finances are to be settled post separation. This blog post outlines what to expect and what documentation you will need to gather and provide during the mediation process. Mediating on finances can be daunting, but for many it is a preferable method over the Courts. If you require any further information, you can contact our friendly team here: or book your first MIAM here.