Getting divorced is stressful. The emotional toll can be considerable. Often there are financial worries too: what will happen to the family home? Who will pay the mortgage? Will there be financial support for the children?
Sometimes the issues are straightforward, sometime they can be very complex. But in every case the goal is to get the best possible outcome for the lowest possible cost.
If a divorcing couple can’t agree how to divide their assets then they may need to go to court. This is known as an application for a
Financial Remedy. In this sort of case the court can make four types of order:
When deciding how to distribute property the court must consider all the circumstances of the case including:
Note that the court’s first consideration is the welfare of any minor children of the family. This can mean that even though the family home is the only significant asset, it may not be divided between the spouses. Instead it may be kept by the main carer, so that the children can have a home until they reach adulthood.
Note also that the court has limited powers to direct a spouse to pay child maintenance. In fact, this can only be ordered if both spouses consent. Even then the order is only binding for 12 months or so. To a large extent the responsibility for calculating child maintenance has been taken away from the court and placed with the Child Maintenance Service.
For more information visit the Child Maintenance Service
Over the years various additional principles have been developed by the court. These include:
Generally speaking there may up to three hearings in a case of this sort:
First Directions Appointment (FDA) This is a short hearing, perhaps 45 minutes or so, when the court will consider the case papers and make directions in order to prepare the case for the next hearing. Typically the court will direct that a particular asset is valued. The court may also authorise both sides to put written questions to the other about their financial circumstances.
Financial Dispute Resolution (FDR) The second stage, perhaps two or three months later, is a short hearing, maybe lasting an hour or so. Please note negotiations outside of court may take considerably longer – perhaps all day. At this point the financial picture should be more or less clear: the spouses will have disclosed all their assets and income and both will have made offers to settle in writing. These offers will then be considered by the judge who will indicate which of them is fairer. The judge cannot force a settlement on the parties at this stage, but he will indicate what the court is likely to order at a final hearing.
Final Hearing If the parties are unable to settle the case then there will be a final hearing. This may last one day or more and will involve the spouses giving evidence. That is answering question from their own and the other side’s lawyer on oath.
In most cases there are two parties: the husband and wife.
Sometimes however another person may claim that part of the matrimonial pot belongs to them. So, for example, a spouse’s parents or grandparents might have helped the couple to buy the family home.
In that case the parents (or grandparents) may wish to recover the money they lent when the property was bought. They can then apply to join the case so that they can argue their point in front of the judge.