WHY YOU NEED A GOOD DIVORCE SOLICITOR
Financial matters in divorce are a separate legal action to the administrative process of a divorce petition. You can get a divorce in England and Wales without finalising who gets what financially, both now and in the future.
It is important to ensure that financial matters are finalised, otherwise there is a potential for your ex-spouse to make a claim against you in the future. The effects of marriage and divorce may continue until a final court order is made in respect of the divorce settlement.
This is called a Consent Order. It is not possible to draft a Consent Order without legal knowledge. It is important that you instruct an expert divorce solicitor to ensure that your Consent Order includes everything that can be included and is legally binding.
It is important to bear this in mind if you are seeking a quick divorce or, as it is sometimes termed, a “quickie divorce”.
THE DIVORCE COURTS’ POWERS IN FINANCIAL MATTERS
All the financial and property issues arising on a divorce are also available on an application for JUDICIAL SEPARATION or dissolution of a CIVIL PARTNERSHIP AGREEMENT except that the Court cannot make a Pension Sharing Order on JUDICIAL SEPARATION.
ENGLAND AND WALES DIVORCE LAW FINANCIAL ORDERS
There is no formula in England and Wales. The Judge can make any order he thinks fair based on all the aspects of the case. Given that each marriage is different and each Judge has a different slant on what he considers fair this makes it difficult to predict what will happen in Court. There are no guarantees in litigation however the Judicial Discretion in Family Law makes it even more unpredictable. Different courts have different reputations – some are deemed more likely to order a clean break whereas some are more inclined to order life time spousal support. Your divorce solicitor should know what type of orders the local courts are likely to make and advise accordingly. You can issue divorce proceedings in any court you choose, although your spouse can make an application for a transfer. Therefore, such inside knowledge as to what types of orders judges in certain courts are likely to make can prove very useful.
The Family Court has wide powers in financial applications on divorce. Once a financial application has been made (termed a Financial Remedy Application) the judge has a wide discretion to determine a fair settlement on separation and divorce.
The Judge can make the following orders:
- Property Transfer
He can transfer property, for example, the house, from joint names to one of the parties, or from one to the other.
- Sale of Property
He can order the sale of property and the distribution of the funds of sale.
- Pension Sharing Order
Only in a Consent Order upon Divorce can the Court make a Pension Sharing Order. If you get divorced abroad, you will need to make an application to the English High Court to implement a Pension Sharing Order made in a foreign divorce. It cannot be implemented any other way.
- Spousal Maintenance Order
This is an order to make one party pay the other monthly basis. This can be for a fixed term, for example until the children leave school or retirement; or for life. Maintenance will automatically cease on the death or remarriage of the receiving party.
- Nominal Maintenance Order
This is an order for nothing immediately but leaves one party’s claim for maintenance open and means they can go back to Court in the future if they need to in order to seek a maintenance order.
- Clean Break
The ending of any claim of either a capital or income nature which one party has against the other.
- Child Maintenance Order
The Court only has powers to make a Child Maintenance Order if the parties are in agreement. After 12 months either party can make an application to the Child Support Agency (or its successor) for a variation.
The court can order one party to pay off the debts of the marriage and to indemnify the other party.
FULL FINANCIAL DISCLOSURE ON DIVORCE
Full Financial Disclosure is essential before offers to settle can be made.
Once the parties have exchanged full financial disclosure each side should be in a position to proceed to settlement without the need for the court to interfere.
Some couples are able to negotiate a divorce settlement via MEDIATION or via negotiation between themselves and their divorce solicitors. If there is sufficient assets good will between the parties then COLLABORATIVE LAW can be amazingly successful at obtaining an agreement in circumstances where both parties have the benefit of legal advice and the support of their divorce solicitor throughout.
However, if this is not possible an application to the FAMILY COURT becomes necessary.
DIVORCE IN THE UK - COURT ORDERS
The FAMILY LAW COURT can make orders in relation to the following:
- MAINTENANCE – PERIODIC PAYMENTS
- CHILD MAINTENANCE Specific Issue orders