Financial Orders – The Law

Financial Orders – The Law

Orders

Within Divorce Proceedings the Court has the power to make a wide range of Orders about financial settlements either by agreement of the parties or through a Court Application, namely:-

  •  A lump sum payment to be made from one spouse to another;
  • Order one spouse to make ongoing maintenance payments, known as periodical payments to the other spouse;
  • Order a matrimonial home to be sold, either now or at a later date, transfer from one spouse to another and set out the shares, if any, that each person will have in the property or the proceeds, known as a Property Adjustment Order;
  • If both parties consent to the making of an Order, Order one spouse to pay maintenance to the the other spouse for the benefit of children; and/or
  • Order a pension to be split, known as a Pension Sharing Order so that a proportion of the pension is transferred to a Pension Fund owned by the other spouse.

Agreed Orders

If the parties are able to agree the terms of a financial settlement within divorce proceedings the terms of agreement can be recorded in a document called a Consent Order. If the parties cannot agree a District Judge at a final hearing will decide the outcome by applying Factors set out in law, as well as the relevant case law.  At Gotelee our Solicitors will endeavour to assist you in coming to an agreement over the terms of a financial settlement.  This can be done through negotiation and can include a collaborative law approach where parties meet, together with their Solicitors, which can be a productive way of resolving matters in appropriate circumstances.  At Gotelee, our Solicitors are able to offer collaborative law services as well as a more traditional approach to resolving matters.

Mediation

Before making any Application to the Court, the parties must consider the use of mediation.  Mediation is a constructive way of resolving matters, enabling parties to meet with an independent mediator and to discuss financial settlement and avoid the costs and acrimony of Court Proceedings.  If Court Proceedings are issued without consideration of mediation the Court may adjourn those Proceedings for the parties to attempt mediation.

Factors/Case Law

When deciding the division of the capital, income, property and pensions it is necessary to take into consideration all of the circumstances of the case including but not limited to a number of specific factors which are set out in the Matrimonial Causes Act 1973.

These factors include the following;

  • The housing needs of the parties and, in particular, the need to house any child.
  • The net income, earning capacity, property and other financial resources that each party both now and in the foreseeable future including any increased earning capacity.
  • The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future.
  • The standard of living enjoyed by the family during the marriage.
  • The age of each party and the duration of marriage.
  • Any physical or mental disability of either party.
  • The contributions which each party has made or is likely to make to the welfare of the family.
  • The value of any benefit which either party has lost by the dissolution of the marriage including pension provision.
  • The conduct of the parties if it is extremely serious conduct and therefore unfair to disregard.

It may be necessary to look at Case Law i.e. cases which have been reported in the Higher Courts in this Country for guidance as to what weight will apply to each of the factors.  These cases set out important guiding principles which assist Solicitors in advising clients as to the likely outcome of a cases should they proceed to a final contested hearing. In the majority of cases it is possible to agree the terms of settlement by considering and applying the relevant factors in each case.

How can our Family Law Solicitors help?

Our solicitors will be able to advise you on how these factors are relevant to your own circumstances and what a reasonable settlement might be.

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