Filing for divorce is, for most, a daunting task. Whether children are involved or not, it is an emotional time for you and your partner and so other factors including court proceedings, financial agreements and property agreements can make the process all the more difficult to manage.
If you’ve made the decision to initiate divorce proceedings, the third in our three part guide to prepare you for the process may help.
Financial arrangements and children after a divorce
Irrespective of where the children live, both parents are responsible for financial support post-divorce. You can apply for financial support from your ex-partner, in three ways:
– By family-based agreement
– Through Child Maintenance Service (CMS)
– With a court order
Family-based agreement: Also known as a voluntary agreement, if you and your partner agree (either verbally or in writing) to financial support. The Child Maintenance Option Service will help you understand how to set up a family-based agreement, how much you should pay/be paid, and check you and your ex-partner can meet the arrangement. As mentioned above, it is wise to seek the expertise of a family law solicitor when agreeing financial support. They can also help you write up any agreement to prevent disputes in the future.
Child Maintenance Service (CMS): If your children are living with you, rather than your ex-partner, you have the option of obtaining financial support through the CMS. This is the government child maintenance service and after you have spoken with Child Maintenance Options at http://www.cmoptions.org/, you can apply for the CMS at gov.uk (https://www.gov.uk/child-maintenance/overview).
Court Order: The Court is unable to make any order for child maintenance unless one party resides abroad and therefore is outside the jurisdiction of the Child Maintenance Service.
Property and possessions after a divorce
All property, owned by you and your ex-partner, including property owned before marriage, should be accounted for in court when calculating a financial settlement. If the courts find either party to be hiding ownership of property or possessions, that party will be penalised.
Establishing ownership for joint possessions can be difficult, however there are some guides you can follow:
– A gift from one partner to another means that gift belongs to the person the gift was given to
– Wedding gifts belong to the person whose friend /family member gave the gift
– For possessions bought jointly or for joint use, you and your partners must make an agreement
– The person with whom the children live will be entitled to keep domestic possessions
If an agreement on the above cannot be met, the decision can be taken to court.
Ownership of the marital home after a divorce
Both you and your ex-partner have the right to live in the marital home, irrespective of whether you or both of you own/rent the property. Unless a court orders otherwise, neither of you can make the other leave the home.
Orders affecting Home rights can be made during a marriage break down and can be made by the Court. For further information see domestic abuse.
What do the courts look at?
The law governing the division of income and assets on divorce is set out in The Matrimonial Causes Act 1973.
The orders the court can make are as follows:-
- periodical payments – also called ‘maintenance’
- secured provision – to secure that payment against an asset (this is rare and usually only arises in cases where the person paying lives abroad but has assets in the UK)
- lump sum payments – a cash payment
- property adjustment – transferring all or part of one spouse’s interest in an asset
- orders to do with pensions
The Court considers all the circumstances of the case when considering what orders should be made, giving first consideration to the welfare of any child of the family under the age of 18. In particular, the Court has regard for the following matters.
(a) The income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future. This includes, in the case of earning capacity, any increase in that capacity which, in the opinion of the Court, it would be reasonable to expect a person to take steps to acquire;
(b) The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future;
(c) The standard of living enjoyed by the family before the breakdown of the marriage;
(d) The ages of each spouse and the duration of the marriage;
(e) Any physical or mental disability of each spouse;
(f) The contributions which each spouse has made or is likely to make in the foreseeable 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 spouse, if that conduct is such that it would in the opinion of the Court be inequitable to disregard;
(h) The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring (most usually pension provision).
The aim of the court is to achieve fairness. Often a key factor is the reasonable needs of the parties.
We aim to achieve a settlement for our clients in the most cost effective way. This means exploring all possibilities such as mediation, round table meetings as well as court proceedings if they are absolutely necessary.
Where court proceedings are required, we will try and negotiate a settlement for our clients as soon as possible within those proceedings, provided it is in our client’s best interests to do so.
If a settlement is reached without the need for court proceedings, it is advisable to have this drawn up into a formal document known as a consent order to ensure that it is effective and enforceable.
In some cases, it will be possible to reach a settlement that completely separates a couple’s capital and income. This is called a ‘clean break’. The Court is obliged to consider whether this would be appropriate – however this really depends on the particularly of each case.
Backhouse Solicitors are experts in all areas of family law. If you would like further advice or guidance relating to your individual circumstances please contact our legal team today on 01245 893400 and book a FREE 30 minute consultation.
The Backhouse Solicitors Team