Financial remedy proceedings

Either party to the marriage or civil partnership can make an application for the Court to decide how the assets are to be divided. Both parties will be required to submit evidence of their full financial situation by way of a Form E, and the Court will consider all of the assets and debts of each party when deciding what a fair division will look like.

The Court can make financial orders to divide up assets and income. The Court’s powers apply to all property in which either or both of you have an interest (which may also, in certain circumstances, include assets in companies or trusts). Orders the Court can make include:

• an order for the sale of a property, a transfer of a property to one person (or to a child), or an order to put a property into a trust. In some cases, it may be appropriate for one of the parties to receive their share of a property at a later date, for example when any children have reached the age of 18 or completed their education
• an order for a sum of money (a lump sum), payable in one sum or by instalments, or by a series of lump sums, for example to pay off a mortgage
• an order for one party to pay maintenance to the other party, either for the rest of their joint lives/ until the recipient remarries or enters a subsequent civil partnership, or for a fixed period (which can be for either a non-extendable or extendable term)
• less commonly, an order for the educational expenses or special needs of a child, but not usually for general child maintenance, which will be dealt with via the Child Maintenance Service unless agreed between parties, except at higher income levels where the Court can make a ‘top-up’ order, and
• an order that a pension be shared or attached. Sharing is where pension funds are transferred or split between the parties creating two separate pension schemes, and a pension attachment order is like maintenance direct from a pension but can also be a lump sum.

In many cases, the final arrangement will be agreed by the parties before the final hearing and a Consent Order can be drafted. However, if this is not possible, the Court will make the Final Order.

The Court follows the legal principles from legislation and case law in making its decision, although judges have discretion and can make orders based on the individual circumstances of each case, meaning the precise outcome of financial remedy proceedings can be difficult to predict. Your lawyer will advise as to the potential orders the judge could make, along with suggested proposals to be made to settle matters outside of Court.

When dividing assets, the Court will compare the final division against the benchmark 50/50 asset split. The judge will assess any circumstances where 50/50 is not appropriate, for example, if the needs of one party (or the children) require a higher proportion of the capital assets for housing, or if one party came into the marriage with significantly greater assets than the other.

An agreement made before or during the marriage (a pre-nuptial or post-nuptial agreement) can also have a significant effect on what the Court decides.

The statutory principles are set out in section 25 of the Matrimonial Causes Act 1973 and Schedule 5 to the Civil Partnership Act 2004. The Court’s first consideration is the welfare of any children involved. Alongside that, when determining an appropriate division of resources, the Court considers:

• each person’s income, earning capacity, property and other financial resources, available now or in the foreseeable future
• each person’s financial needs, obligations and responsibilities relevant now or in the foreseeable future
• the standard of living enjoyed by the family before the breakdown of the marriage
• each person’s age and the length of the marriage
• any physical or mental disability
• contributions made or likely in the foreseeable future to be made to the welfare of the family, including any non-economic contribution such as caring for any children
• 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 (although it is rare for conduct to be taken into account and the reason for the marriage or civil partnership breakdown is very unlikely to be a conduct issue for the purposes of a financial application), and
• the value to each of the parties to the marriage of any benefit which that party will lose the chance of acquiring

Other principles have become part of the law through the decisions of senior judges in important cases.

‍

Your lawyer will discuss the timescale we estimate for your case. Each case is unique, and the time between the initial discussions and any final agreements or orders made will vary depending on various factors.