More information on Financial Issues

The Court must have regard to a number of principles when deciding what order to make. The first consideration is always the welfare of any children. In practice this usually means ensuring that the children’s housing needs and other day to day needs are met.

Having considered the welfare of the children the Court then considers the following:-

a) The capital, income and other financial resources of the couple which they have or are likely to acquire in the near future.

b) The financial needs, obligations and responsibilities which both have or are likely to acquire in the near future.

c) The standard of living enjoyed by the family before the breakdown of the marriage or civil partnership.

d) The ages of each of the parties and the duration of their marriage or civil partnership.

e) Any physical or mental illness of either party.

f) The contributions which each have made or are likely to make in the near future to the welfare of the family including any contribution by looking after the home or caring for the family.

g) The conduct of each partner if that conduct is such that it would be in the opinion of the Court inequitable to disregard it.

h) The value to each partner of any benefit which one because of the divorce will lose the chance of acquiring (most usually pension provision).

The aim of the Court is to achieve fairness. In the vast majority of cases the reasonable needs of each of the parties is the factor that plays most heavily on the Court’s mind. The Court has a discretion as to how to apply the principles and can take into account any other circumstances that they believe are relevant. Thus the law is flexible and it does not necessarily follow that the assets are divided 50/50. An equal division of assets may be appropriate in some divorces but in others it will not.

The types of orders that can be made

The Court can make the following orders:-

1. Payment of a lump sum from one party to the other.

2. Sale or transfer of assets – the most common form of order is the sale or transfer of the family home.

3. Regular payments from income – more commonly referred to as “spousal” maintenance which can continue during the joint lives of the parties or until the payee’s remarriage. Alternatively the payment could be for a fixed period of time.

4. Pension sharing – which has the effect of re-distributing the value of the pension fund or funds.

5. Variation of family settlement.

6. Child maintenance – the Court retains this power only where agreement is reached in advance between the parties. If there is a dispute over the level of the payment then either parent can apply to the Child Support Agency for an assessment.

7. School fees order – to ensure that school fees are met.

In the vast majority of cases it is possible to reach agreement on the division of assets and payment of maintenance (where appropriate). Agreement can only be reached after both parties have disclosed to the other, through their solicitors, details of their financial circumstances. If negotiations lead to an agreement then it is important that the agreement is embodied in a Court order to ensure absolute certainty.

Mediation and Collaborative Law

Agreement on the division of assets and finance generally can be made either through solicitors in the traditional way, through mediation or the collaborative law route. Mediation is a process whereby the couple attend a series of sessions with an independent mediator who will try to assist them in reaching a negotiated settlement. The other method of dispute resolution available known as “collaborative law” is described more fully our website.

If agreement is not possible then either party may apply to the Court for the Court to determine the appropriate order. The application for financial provision (otherwise known as an application for “ancillary relief”) is timetabled by the Court from start to finish. It can take twelve months from start to end. Negotiations will usually continue during the process but the default position is that in the absence of a negotiated settlement the Court, after hearing evidence from the parties will make a decision and impose an order.

It is far more cost effective to try and reach agreement without making an application to Court. In some cases however and with the best will in the world it is not always possible to reach an agreement. The Family Law Team at SAS Daniels LLP have a proven track record in brokering appropriate settlements for their clients, thus saving them many thousands of pounds in legal costs. In some cases however and with the best will in the world it is not always possible to reach an agreement. We are experts in the Court process. We can guide you through each and every stage to make sure you get the best outcome to the circumstances of your case.

Ancillary Relief

This is the financial settlement reached upon the termination of a marriage or civil partnership. The divorce itself dissolves the marriage or legal relationship, but a separate application must be issued to resolve financial matters. Within financial proceedings, Orders can be made for maintenance, transfer of property, sale, lump sum payments and pension sharing orders. Our team can advise and assist you the Court process and the likely orders to be made.

Call 0800 018 0433 now for a consultation with one of the Family Law Team.

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