Legal considerations

'Ah, yes, divorce, from the Latin word meaning to rip out a man's genitals through his wallet.'
Robin Williams

Please scroll down for featured articles:
What happens if we reach agreement by ourselves?
The agreement is presented to Court to be made into a Court Order
What if we can't agree?
What is the law regarding the division of assets?
How does the court decide how to split the assets?
Which orders can a court make?

What happens if we reach agreement by ourselves?
Many couples are able to reach agreement about their finances by themselves but a solicitor will be needed to advise on the implications of any agreement and convert it into an order recognised and enforceable by the courts. Others are able to agree after using mediation. Information about this is available further on In this section. This, of course, saves a lot of time and emotional distress, not to mention legal costs. Your solicitor's aim is to reach the best settlement as he can for you but, at the same time, he also has an idea of the type of settlement a court may reach if your case were to come before it. If you were made aware of this, it could show you that your spouse is not being unreasonable in the eyes of the law or, on the other hand, it could show you that you are simply selling yourself short. It is not advisable to negotiate in ignorance and you are the one who has to instruct your solicitor. The decisions are ultimately yours.

The agreement is presented to Court to be made into a Court Order
Any agreement is then produced as a document which the court, if satisfied, makes into a court order confirming the terms of agreement. This is known as an order by consent. This is so things are formalised and both parties know what is expected. Just as a decree absolute finalises the end of a marriage, a court order spells out the financial terms of agreement when a decree nisi is pronounced. The Legal process is explained briefly in the next article.

What if we can't agree?
If you have tried your best to come to an agreement with the help of solicitors and/or mediators and there is none in sight, you should probably make an application to the court in order to resolve these issues. It is a fruitless, exhausting and expensive exercise to continue arguing through solicitors when it is quite evident that one or both of you will not compromise and settle. This is not to say that the case will definitely be heard by a court as parties can agree at any time right up to the final hearing. Making an application is a powerful incentive for agreement. Putting the case in the hands of the court can be quite a relief in some cases. Although you may not know what the outcome may be, at least then you will know that decisions will be made and a settlement drawn up. The end will be in sight.

What is the law regarding the division of assets?
There are no laws or rules about how assets should be divided. There is no absolute law as the 50/50 law. There are no rules about how much ongoing money, if any, should be paid to a spouse, wife or husband. The law isn't there to penalise one for bad behaviour. Many people think that because the other left, the law will be more favourable to the other. This is not so. The court does not apportion blame except in extreme cases. Many people also assume that you both get half of the house if it is in joint names. No, this is not true. The court has wide powers to make financial orders as it sees fit. The court can divide assets and even order a property to be signed over to the other spouse even if that name was not on the original deeds. It can make orders regarding children, pensions, businesses and trust funds. Courts have wide and far reaching powers which can be enforced.
The settling of financial matters on divorce is called ancillary relief. The main piece of legislation in this area is the Matrimonial Causes Act 1973. (See also our article on the CSA).

So, how does the court decide how to split the assets?
The law looks forward and tries primarily to ensure that any children are properly looked after and that both of you are provided for. You also have to look to the future in spite of how you may feel toward each other. For help regarding this, please refer back to our Emotions section. The court takes into account a set of considerations which are listed in the above Act before making any financial order. These are as follows:

1. The welfare of a child of the family
This is the first and most important consideration for any dependent child. The CSA does have some jurisdiction now but the courts are still able to issue some orders and vary old agreements. It does not matter what relationship you have with your child, whether there is contact or not, the fact remains that in the eyes of the law, the child is paramount and you have parental responsibility.

2. The income, earning capacity, property and resources of each person
If one of you earns or has the potential to earn far more than the other, then this will play a part in the court's equation. Property and other income is also taken into account. If a wife has been out of employment for some time, the court may not expect her to resume working at the full going rate. It would take into account a period of retraining. When there are young children involved, the court may not expect a mother to immediately take up paid work. And where a husband suddenly reduces his income, a bullish court may take into account his full earning potential. Everything is considered before being put into the pot.

3. The financial needs, obligations and responsibilities of each person
The court will look at the present needs and future ones. It will try to draw up a full picture. If either party has formed a new relationship and is moving out to live with a new partner, this would free up more money as a new partner would be considered a contributor to that household's costs. Another example would be to take into account any elderly parents who are directly dependent on one of you or other children outside the present marriage. Proven debts may also receive consideration.

4. The standard of living enjoyed by the family before the breakdown of the marriage
In most cases, the past standard of living will be difficult to maintain where two households have now to be kept unless there is considerable wealth. Regrettably, it is a common fact that economies have to be made and a new budget agreed.

5. The age of each person and the duration of the marriage
Obviously, if there has been a short marriage without any children and both spouses are able to earn a living, assets could be divided equally but the court looks at each case on its individual merits and may consider what each party has contributed. If there has been a short marriage but the couple are much older, the court would also look at the case on its merits. It could be that the wife has remarried and given up her rights to a home and pension. This would have to be taken into account. If there has been a long marriage and the wife has spent many years caring for the children, the court may be disposed to securing an income for her together with pension rights as well as capital. Each case is different although there are similarities.

6. Any physical or mental disability
The court will always examine special circumstances such as these and adjust their calculations accordingly so that appropriate care is provided, especially in the case of a child.

7. The contribution made by each person to the welfare of the family, including looking after the home and bringing up children
If a spouse has stayed at home to bring up children or has taken a job with less money to fit around the children, you are both usually considered as equal in contribution terms. It is probably a fruitless exercise to try to prove that one has contributed more than the other where there are children.

8. The conduct of each person, but only if it is so bad it would be unfair to ignore it
Misconceptions occur regularly in this area. The court is not concerned with past behaviour and it is pointless to point out misdemeanours that you consider important. Even if adultery has occurred, the court does not apportion blame nor does it penalise one side. It would however consider a case if, for example, one party had injured the other so that work was now impossible to undertake. This would be an extreme case.

9. Any serious disadvantage to either person which would be caused by ending the marriage
The value of any benefit, such as a pension, which either spouse would lose as a result of a divorce.

Which orders can a court make?
You should always consult a solicitor as the timing and wording of your applications is important. The court can make the following orders:

1. An order for maintenance pending suit
This means that maintenance could be paid before the decree absolute is granted. It is usually used when proceedings may take some time and there is an immediate need for maintenance.

2. An order for periodical payments, otherwise known as maintenance
This is paid at regular intervals, normally monthly in arrears.

3. An order for secured periodical payments
This is quite rare. The above periodical payments can be secured by a capital asset and usually happens when there is a large settlement.

4. A lump sum order
This could be for any amount of money perhaps to offset a share in a property or pension or just a proportion of available assets.

5. A property adjustment order
The court has the power to sign a property over to one spouse, usually to the mother when there are children, or to alter a party's share in the property.
An order to direct pension fund trustees to pay part or all of any pension rights when they are available. This could mean either earmarking or splitting the pension assets. For more details, refer to our article on Pensions later In this section.

6. If you are unable to agree
There is of course mediation and Collaborative law to be considered but, failing all else, you may be advised to go to court. The Legal process is described in our next article.

'It's a funny thing about life; if you refuse to accept anything but the best, you very often get it.'
Somerset Maughan

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