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Legal Basics - Money & Divorce
updated
24 July 2007
Financial Settlement on
Divorce
On divorce or separation all of your assets and those of your spouse are
regarded as matrimonial assets and are in the melting pot when looking at
what is a reasonable financial settlement for both of you.
It therefore does not matter in whose name they have been purchased eg if the matrimonial home is in just one of the spouse's names it is still a matrimonial asset.
Similarly debts are treated as matrimonial
liabilities, although if debts have been accumulated by one party purely for
their own purposes eg a large gambling debt, then this may be regarded as a debt
of that individual and not a matrimonial debt.
When coming to a final Order the court will simply try to be fair to both parties and there are a number of
factors which they take into account (see Section 25 of the Matrimonial Causes
Act 1973).
These include :-
Duration of the marriage;
The age of the couple;
Contributions during the marriage;
Pensions and loss of widow's benefits;
The financial resources of each spouse;
The needs of each spouse.
It is usually worth making a list of all the assets, debts, liabilities, income
etc of you both and then speaking with a solicitor, so that you can negotiate from a
position of strength and knowledge. If you need to speak with a specialist
family solicitor see our panel, or
you can always discuss your situation in more detail with one of the panel on
the telephone for a fixed fee of £40. For more details on this service
click here.
Severing a joint tenancy
One important step that you should take
whilst sorting out your finances is to sever the joint tenancy that you
probably have on your property. If you bought your property together as husband
and wife you are almost certainly joint tenants. This means that if either of
you die, then your share in the property automatically passes to the other
spouse. If you are getting divorced this is probably not what you want to
happen. For more details about severing a joint tenancy
click here.
If the property is owned in the name of only one of the parties then the
non-owner should register a caution against dealings on the property, to prevent
it being disposed of without the other party knowing and agreeing.
Types of Court Orders
The court has wide and flexible powers to make orders
in divorce proceedings.
The court can make orders for:
How to sort out the financial aspects of divorce
Once divorce proceedings have been filed, either you or your husband or wife can
file a form at the court saying that you want to put in a financial application.
Both of you will then have to fill in a long form ('Form E') with all your
financial details. You have to exchange these with each other at the same time.
The court will then fix an appointment to check that all the evidence has been
filed and there will be a session at court to see if you can reach an agreement.
Forms and information leaflets are available from the
Court Service website.
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Maintenance & The Child Support Agency
One of the most emotionally challenging aspects of divorce and separation is how to deal with the children and the issues around child support.
What many people are unaware of is that when the Government introduced the Child Support Agency (CSA) in the early 90’s the Courts lost most of their powers to deal with maintenance for children. This means that Child Maintenance is generally no longer a case for the divorce courts or for your lawyer.
The two main circumstances where the Courts used to make maintenance orders were where parents separated or divorced, or where the parents were not married and the child’s father did not want to help financially with a child’s upbringing.
The Role of the Child Support Agency (CSA)
Today the Child Support Agency deals with maintenance for ALL children in all circumstances. This means that lawyers cannot help very much when a father won’t pay anything to help the mother bring up a child, or where the CSA has already made an assessment and the father refuses to pay, or makes excuses.
At this point the responsibility rests with the CSA to take action, by taking the non-payer to Court to make them pay by, for example, asking the Court to make an Attachment of Earnings Order so that the money is stopped out of the father’s wages each week. There are restrictions on what the CSA can deal with. They cannot for example deal with maintenance for children over 17 years of age.
Where
a father is living abroad, the CSA can, in theory, enforce payment by i) getting
a Court order and ii) getting it enforced by local law enforcement authorities.
They can send orders to all EU states,
More information is available at www.csa.gov.uk
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