Financial Remedies on Divorce Solicitors
Once you have commenced divorce proceedings you can ask the court to consider your claims for financial remedies, although a final order can only be made by the court once decree nisi has been pronounced.
There is a wide range of orders available to the court in financial remedy proceedings, dealing with the family home, pensions, capital, personal property and income (maintenance). Note however that the court has no power to make orders about child maintenance unless this is agreed upon by the parties. If there is no agreement, child maintenance has to be assessed by the Child Maintenance Service.
There are a number of statutory factors which the court must take into account in determining an application for a financial remedy, which are set out in section 25(2) of the Matrimonial Causes Act 1973, and which are as follows:
(a)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 increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b)the financial needs, obligations and responsibilities which each of the parties to the marriage 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 age of each party to the marriage and the duration of the marriage;
(e)any physical or mental disability of either of the parties to the marriage;
(f)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;
(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Although these factors are notionally of equal importance in very many cases the question of need will predominate, largely because of the high cost of housing in the UK. If one party has a greater capacity to borrow, and to repay mortgage debt they may be awarded less capital if the other party would struggle to rehouse otherwise (especially if they have children to look after).
Since White v White  UKHL 54 the courts have taken the view that once the parties’ needs have been met the court should strive to achieve an equal division of capital between divorcing couples (except where the marriage has been very short).
Section 25A Matrimonial Causes Act 1973 requires the court to promote a Clean Break, terminating the parties’ financial dependence upon one another wherever possible.
If you can negotiate a fair division of financial assets then your solicitor can draft a consent order reflecting the terms agreed upon, which can be considered by the court and if approved it will become binding upon the parties. If you can’t agree and you ask the court to deal with the matter you will need to exchange comprehensive financial information in standard form called Form E. Once you have done so your case will be listed for a First Directions Appointment, where the judge will deal with any questionnaires that the parties have raised, and if necessary give directions for the valuation of assets. The case will then be fixed for a Financial Dispute Resolution hearing, where the parties will put forward their proposals for settlement to the judge. At this stage the court cannot impose an outcome upon the parties, but he or she will express a view as to what they consider to be a fair division of assets, and encourage negotiation. Most cases settle at this stage, or soon after. Only if the parties still can’t agree does the case go to a Final Hearing, where the judge decides what will happen.
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