Various ways to reach a settlement
As you will have seen in the previous articles, there are many ways and means to reach a settlement. The courts have wide powers and these should be recognised when you are attempting to come to an agreement. The law applies equally to both men and women, so please read wife as husband and vice versa, whichever applies to you. When considering the family home, for example, it should not be done in isolation. Everything should be disclosed and put in 'the pot' so that a fair and equitable split can be made. If this is done, any agreement made in this way would probably have more chance of being adhered to. This arrangement would also probably lead to better family relationships where children are concerned. This is, after all, your aim; to agree on finances so that you are both able to leave the life you planned and move on to the new life waiting for you.
'Money is better than poverty, if only for financial reasons.'
Whether this settlement is made voluntarily with legal guidance and made into a consent order by the court, through mediation, Collaborative law or through the court, it is best to grasp the bull by the horns, compromise, let go of old attachments and move on.
'He who overcomes others has force; he who overcomes himself is strong.'
Lao-Tzu - Chinese philosopher.
Bogged down in the divorce process?
It is not beneficial for anyone concerned, either you or your partner, children, parents, relatives or friends, to get bogged down in the divorce process. Yes, you should think about others who are on this journey with you. Sadly, it often becomes a way of life and you can get immersed in victim language and combat for years to come. There are no winners here despite what you may think and the only way to achieve success is to concentrate on the future. If you can both do this, so much the better.
Our Legal section
You may have read the Legal section but if not please refer to the previous articles there. All sections are interwoven on this site and aim to assist you to move on. If you glance at our final section, Moving on, you will be able to focus on the future: new relationships, independence, new finances, new skills, opportunities and friends.
'When written in Chinese, the word "crisis" is composed of two characters. One represents danger and the other represents opportunity.'
John F. Kennedy
Here we discuss the various arrangements which are possible in the final settlement:
Periodical payments (Maintenance) - For the children
There can be no 'clean break' where children are concerned whether payments are voluntary, through the court or the CSA. Where the court has jurisdiction to make an order (see the previous article on children), the amount to be paid is usually expressed as an annual sum to be paid monthly or weekly. If timing is not mentioned, it is usually paid in arrears. The sum for each child should be stated. This maintenance is usually paid until a child's seventeenth birthday but can also continue to cover extended education, including, in some cases, a first degree. There are also special rules if a child is disabled or dependent.
All circumstances are considered
The court would look at all the circumstances of both parties and also consider what payment would be made under the new formula used by the CSA (see the previous article about Children). If earnings and assets are quite considerable, the court can order a much higher level of maintenance for any child than that calculated by the CSA.
Court orders may be varied
As in all court orders, payments may be varied upwards or downwards depending on a change in either party's financial circumstances. But an application would have to be made to the court and only when there is quite a change in finances. Your solicitor can advise you. The costs of bringing children up, however, do not decrease with age as any parent can tell you.
The Child Support Agency (CSA)
The CSA has extensive powers to enforce maintenance against either parent. Again, there can be no 'clean break' regarding children. Whether you have contact with your child or your former spouse remarries, you still have parental responsibility and must pay. We have discussed the new formula in the previous article on Children.
Child Maintenance Options (CMO) and
Child Maintenance and Enforcement Commission (CMEC)
Child Maintenance Options is a service run by the Child Maintenance and Enforcement Commission (CMEC), a new child maintenance organisation set up in July 2008. Child Maintenance Options aims to provide impartial information and support to help parents make informed choices about child maintenance.
Periodical payments (Maintenance) - for the spouse
When the Court has worked out the maintenance for any child, it will look at spousal maintenance. It is now more common for this to be paid for a fixed period but it can be paid for life and only terminate on the death of either party, remarriage of the recipient or by court order. It will not end when the recipient cohabits. A later court order can also vary the amount to be paid. This maintenance would be expressed as an annual sum and paid either weekly or monthly in advance or in arrears.
A typical case
A typical scenario would be a wife who has not worked for several years as she was caring for young children who intends to retrain and seek employment. Maintenance could be fixed for a certain period of time and then the order could be dismissed so that the wife could not claim maintenance again. Or the order could be left open so that if unforeseen circumstances occurred, maintenance could then again be paid. Sometimes it is wrongly assumed that one party is not being well treated when the court makes an order for a token amount of maintenance, say 5 pence per year. In fact, the court is leaving open the question of maintenance so that a spouse can come back to court for an increase should circumstances change in the future. This acts as a safety net.
No set formula
There are no set guidelines or formula for the court to consider. It usually follows the needs and resources approach. Take a look at the article In this section about Budgets as the court would normally refer to the criteria set out there. Capital and income are looked at together as well as any debts or obligations. One party may receive more capital and less maintenance even if there is no clean break. See below. Pensions and other assets are also considered. The court's overall task is to arrive at an order which is fair and reasonable having evaluated all the various factors and balanced them against each other. A bit of a juggling act? Yes. This is why each case is rather different in the eyes of the law.
The clean break
The courts must consider a clean break between the parties but this is often not possible. A clean break means that the court makes an order which would lead to each spouse becoming financially independent of the other. This would be as soon after the grant of the decree as the court considers just and reasonable. This only concerns spousal maintenance and never child maintenance. Child maintenance remains the number one priority of the court.
A clean break after a period of maintenance
A clean break could be ordered after a specific period of maintenance (periodical payment).This period of time would be considered by the court to be sufficient for the recipient, usually the wife, to adjust without undue hardship to the end of financial dependence on the husband. Time-limited orders are less used when there are dependent children. They are more used when the marriage has been short and childless and the wife just needs a period of time to enable her to support herself.
When capital is available
A clean break can be fair and reasonable when there is capital available in the place of maintenance. The availability of funds, of course, is crucial and the court will look at all the circumstances including each spouse's ability to earn and any plans to remarry.
Wealthier couples and the clean break
There is a formula the court considers for wealthier couples and this is known as the Duxbury calculation. A lump sum sufficient to meet, usually, the wife's needs for the rest of her life on the basis that she draws capital as well as income is calculated. Needless to say, this is quite complicated and usually only works well when the wife is close to retirement age and there is a very large amount of capital available.
Advantages and disadvantages of a clean break
The main advantage of a clean break order is the certainty that this entails. Each spouse knows what has to be paid and when it ceases. This would therefore encourage independence as nothing could instigate court proceedings again. A disadvantage would be that the lump sum cannot be increased at a later date and if the recipient were to fall ill and not be able to work, support could not be sought from the ex spouse. On the other hand, the recipient could remarry after having received a lump sum whereas maintenance would cease at the time of the remarriage if a clean break had not been made. Swings and roundabouts. This option must be carefully considered.
Using the net equity in the home
In cases where there is no capital except for the net equity in the home, a couple may decide to use this equity as the basis for a clean break but the courts would not be happy to do this if say the wife did not have an income of her own. The courts may think that she would have to resort to receiving state benefits and may avoid this situation. Also, if the wife were only a few years from retirement age and had little prospect of getting a job to support herself, the courts would also be reluctant to consider this scenario.
Pensions and inheritance with a clean break
The courts can still award a wife (or the husband) a share of the other's pension, payable on retirement if no other provision for pensionable age can be made at the time of the clean break. A clean break order should normally include a provision to prevent one spouse from having a claim on the estate of the other after death under the Inheritance Act.
Capital orders include lump sums, transfer of property and pension adjustment. These are described below.
As the term suggests, this means an amount of money which one spouse gives to the other either all at once or by specified instalments. The court can now also make an order for a lump sum at a later stage than the divorce itself. If a periodical payments order is ended by court order, the court could then order a lump sum to be made so that a clean break could be achieved. This is when a clean break was not possible at the time of divorce. Typically, a wife would receive a large sum which she could invest and live off.
Transfer of property order
As we have tried to convey, the courts have an extensive range of powers. This normally involves the matrimonial home but can also include a tenancy or shares. The court can order a spouse to transfer a property to the other or adjust the proportion which each one holds. It can also order the sale of a property and order the proportion that each would retain, if any. This order can only take place after a decree nisi has been granted.
When sharing assets, a court can also adjust pension rights, lump sums, child maintenance and spousal maintenance.
It should be noted, however, that when a property is mortgaged, the person or company providing the mortgage must be served notice before it can take place and an objection may be made. Consent is therefore usually sought before an order is made.
The court cannot order a third party to make a transfer.
Please refer back to our previous article about Pensions for more details. When dealing with divorces filed on or after 1 December 2000, the courts now have wider powers to deal with pension rights. This is good news particularly for women who do not have a proper pension of their own and have therefore relied upon the pension provision of the husband. (This could, of course, equally apply to men).
Pensions are vital - they could be the largest asset
Pensions may seem complex at first glance and some people disregard their worth as they find the subject too complex. But beware. Pensions are vital. A pension fund can form the largest capital part of a settlement, particularly when there has been a long marriage. As in all matters concerning divorce, you should seek professional legal advice. Your solicitor will be able to demystify the subject but you should read up as much as you can on this as well as obtaining all the financial details of any policies belonging to you or your spouse. These details will be essential in the legal process and can provide a valuable bargaining tool. Any work that you can carry out regarding pensions will only serve to keep legal costs down.
Pensions for wives nearing retirement
Pensions are more important when a wife has spent most of her time caring for the children and home and has little or no pension fund in her own name. Another wife nearing retirement age could have expected to have shared her husband's fund, particularly when she devoted herself to the family. Even if she got a job, she would not have time to build up a sufficient fund to support herself in retirement. But even the younger wife should consider this subject carefully as every year lost in pension contributions means that a much higher figure would have to be paid in to her account at a later date.
'It's a funny thing about life; if you refuse to accept anything but the best, you very often get it.'
To summarise, the courts can, under the new law, consider the following options. (For divorce cases which were filed before 1 December 2000, only the first five options are available to the courts): (here we refer to the wife as meaning the wife in the divorce proceedings)
All in all, the financial pot should contain everything for consideration and shares adjusted according to the distribution of each particular asset.
If you haven't already read the articles in our Legal section about Obstacles to settlement, check back there. You may feel as though it will never end but this is normal. Ask anyone who has been through the process. If you are unable to agree voluntarily, you can at least take some comfort from knowing that nowadays courts have greater powers to control the process and aim to shorten and simplify it.
Take it easy
Be aware that decisions have to be made. Prepare yourself well and do your best as doing your best is all that you can do. There are set time limits for each stage and at least you will know that a decision will ultimately be reached.
'No pessimist ever discovered the secrets of the stars, or sailed to an uncharted land, or opened a new heaven to the human spirit.'
Once a settlement has been agreed, it may all feel like an anticlimax. These negotiations may have taken up much of your time and energy. You may start to reflect on all that has happened. Perhaps there has been much expense in getting to this stage. Whatever has happened, it is in the past and now is the time to move on. Have a look at our Moving on section for information about finances, education and dating again.