Financial Orders on Divorce
Sorting out the financial/property settlement can often be the most difficult aspect of a divorce. If the settlement cannot be agreed then one or both of the parties will need to ask the court to sort it out, by making an application for a financial remedy. Even if agreement can be reached, it will usually have to be incorporated into a court order, referred to as a 'consent order'.
So, what types of financial orders can the court make, and what factors does the court take into account when deciding what orders are appropriate in a particular case?
There are essentially four types of financial orders that the court can make:
- Maintenance orders – These are orders requiring one party to pay regular maintenance to the other party. The order will specify the amount of the maintenance, when it should be paid and the duration of the order. The order will always end upon the death of either party or the remarriage of the party receiving the maintenance. The court can also make child maintenance orders in certain limited circumstances, but if this is not agreed then it is usually dealt with by the Child Maintenance Service.
- Lump sum orders – These are orders requiring one party to pay a lump sum of money to the other party. The lump sum can be payable in instalments. The order will specify by when the payment(s) must be made.
- Property adjustment orders – As the name suggests, these are orders adjusting the ownership of property. For example, the court might make a property adjustment order transferring ownership of the former matrimonial home from the joint names of both of the parties into the sole name of one party, or an order adjusting the shares in the property from 50:50 to, say, 75:25.
- Pension orders – There are two kinds of pension orders that the court can make. Firstly, pension attachment orders, requiring the pension provider to pay a percentage of the pension benefits to the non-pension-holding spouse, once the pension becomes payable. Secondly, and far more commonly, pension sharing orders, transferring a percentage of one party's pension into a pension in the name of the other party.
What are the factors that the court takes into account when deciding which of these orders to make? Well, the general duty of the court is to have regard to all the circumstances of the case, with the first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
The court is also required to consider terminating the financial obligations between the parties as soon after the divorce as the court considers just and reasonable. Accordingly, for example, a spousal maintenance order may only be made for long enough to enable the receiving party to regain financial independence.
Otherwise, the court must in particular have regard to the following:
(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, in particular their housing needs.
(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 (which will normally be considered to be as valuable as the financial contribution of the breadwinner).
(g) The conduct of each of the parties, but only if that conduct is such that it would in the opinion of the court be inequitable to disregard it, which means in practice that conduct will rarely be a relevant factor.
(h) 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, for example a widow's pension.
In most cases the most important of these factors will be the needs of the parties. Dividing up whatever assets are available in order to satisfy those needs will be the main priority of the court.
Finally, although not mentioned as a factor in the above list, the court will seek to impose a settlement that is fair to the parties. Fairness includes the principle that each party is entitled to an equal share of the assets, unless there is a good reason to the contrary.
To speak with a solicitor at Selachii call 02077925649 or email This email address is being protected from spambots. You need JavaScript enabled to view it.
