Divorce & Finance Solicitors
At Lovell Chohan solicitors, we have Law Society accredited Children and Adult Panel members, Advance Family Law Solicitors and solicitors who are accredited specialist Resolution solicitors who can assist you. One of the by products of the divorce is the need to settle the parties financial matters. It is usual for parties to try and negotiate a settlement and this is embodied in an agreed order, usually referred to as a consent order. Providing the parties have agreed to such a consent order and the court approves this there is usually no need for the party’s to attend court. A financial consent order can be agreed any time after the Decree nisi has been pronounced. Once a consent order is agreed, signed and sealed by the court it cannot be varied except in very exceptional circumstances.
In certain cases the parties are unable to agree a settlement and if this happens it will become necessary for one party to issue an ancillary relief claim (Form A) with the court. Ancillary relief claims deal with the law relating to financial provision on the breakdown of marriage. It covers a range of orders that the court can make for spouses under the matrimonial causes act 1973 and four civil partners under the civil partnership act 2004.
The court has a wide range of powers available under the matrimonial causes act 1973 and these orders fall into two main categories of income orders and capital orders.
The following are a list of income orders:
- Maintenance pending suit;
- Periodical payments;
- Secured periodical payments;
The following are a list of capital orders;
- Lump sum orders;
- Property adjustment orders(for property to be transferred or held on trust);
- Orders for sale;
- Pension sharing orders
The above orders are available to the parties on application for them anytime after the filing of the divorce petition. However with the exception of maintenance pending suit, the application cannot be heard until Decree nisi and no order will take effect until Decree absolute.
An order for periodical payments for a spouse cannot take effect until Decree absolute. However, a spouse may be in urgent need of money before then. Such clients may wish to apply for maintenance pending suit. Maintenance pending suit is in order for regular payments designed to tide the spouse over until the divorce is determined. A maintenance pending suit order ends on the pronouncement of the decree absolute.
When deciding issues on the division of capital and income the court must try to achieve fairness between the parties. The court must take into account all the circumstances of the case including, but not limited to the specific criteria set out in section 25(2) of the matrimonial causes act. The factors to be considered by the court are as follows:
- 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 be in the opinion of the court reasonable to expect a party to the marriage to take steps to acquire;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- 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; 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;
- In the case of proceedings for divorce for nullity of marriage any benefit which, by reason of the dissolution or annulment of the marriage, the party will lose the chance of acquiring.
Applications for ancillary relief are commenced by the filing of Form A with the court and following this the court fixes what is termed as the first directions appointment, this is usually within 16 weeks. The Directions appointment specifies a list of directions including the filing of a Form E together with relevant documents in support. This is usually filed 35 days before the first appointment directions hearing. In addition to this, at least 14 days before the first directions appointment the parties are required to file and serve a concise statement of issues, the chronology and the questionnaire requesting any further documents or information that either party may require. A form E is a fairly complex and 25 pages long.
The whole point of a first directions appointment is for the parties and the court to define the issues and attempt to save costs and both parties are required to attend. At such a hearing the district judge will decide which questions need to be answered by the parties, any issues on valuations and he may give further necessary directions in the conduct of the ancillary relief application. Following a first directions appointment the matter will be listed for a financial dispute resolution appointment, although sometimes the court may treat the first directions appointment as a financial dispute resolution appointment. A financial dispute resolution appointment is usually listed within eight weeks of the first directions appointment, and the purpose of this appointment is to reach agreement, if possible. Again the matter is heard by district judge who will exclude himself from any future hearings in the case if the matter is not settled. The judge will try to reach a settlement between the parties and give his views as to why he adopts that particular stance of settlement. If the matter does not settle it proceeds to a final hearing, and the end result of a final hearing is that the costs to the parties are high. In the event a settlement is reached the parties will normally draw up an agreement which once approved by the judge will stand as the final ancillary relief consent order.