The English Courts has wide powers in relation to making financial orders following a divorce or dissolution of a civil partnership. This includes making orders for the sale or transfer of property both in England and abroad, the payment of lump sums, the sharing of pensions and the payment of maintenance from one party to another for a defined period or an indefinite period.
Orders the court can make
The Orders the Court can make in resolving a financial remedy dispute are as follows:
- Maintenance Pending Suit: Maintenance for a spouse/civil partner to tide them over during the proceedings. It stops once the divorce/dissolution is concluded.
- Periodical Payments: This is maintenance for an ex-spouse/civil partner which commences after divorce/dissolution. It can for a defined period or an indefinite period (Joint lives maintenance).
- Secured Periodical Payments: These are maintenance payments which are secured against a property or assets to ensure payment. This is a rare type of order, but will be considered in exceptional cases.
- Lump Sum Order: This is a payment of a lump sum of money from one party to another. There is no limit on the amount that can be ordered and it can be ordered to be paid by instalments.
- Property Orders: Various Orders.
Factors the court must consider
There is no magic formula involved available to the Courts in resolving financial disputes. Each case is different and will be judged on its own individual facts. It is however, the duty of the court in deciding what financial orders to make to consider all the circumstances of the case, but first consideration must be given to the welfare of any minor child of the family.
A number of factors are taken into account by the court when dealing with financial orders for a spouse under S25(2) Matrimonial Causes Act 1973 as follows. The specific factors that the Court must consider are as follows:
- 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 foreseeable future, including in the case of earning capacity any increases in that capacity which it would be in the opinion of the court reasonable to expect a party to the marriage to take steps to acquire;
- The financial needs, obligations and 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 duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- The conduct of each of the parties, if that conduct is such that in the opinion of the court be inequitable to disregard it;
- In the case of proceedings for divorce or nullity of marriage any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
At Harper & Odell we will explain to you the relevance of each of these factors applying them to your individual circumstances. We can advise you as to the likely settlement achievable through use of the court process, negotiation or mediation. We cannot predict exactly what would be awarded but we can advise you what type of settlement to expect within certain limits.
We have considerable experience in resolving financial disputes, whether through court proceedings or by advising clients who are taking part in mediation or other types of ADR.
We always attempt to agree a settlement, rather than proceeding to a contested Court hearing where a decision is imposed upon the parties by a Judge. An agreed settlement is often quicker and will usually resolve a dispute more amicably. Furthermore, the legal costs involved in a negotiated settlement rather than a contested hearing will be significantly less. If a satisfactory settlement is not possible though, we would advise issuing an application which ultimately could go before a Judge to be decided.