|
|
 Financial Issues
|
|
Orders
Available
Maintenance Pending Suit
It is sometimes possible for one spouse to obtain an order for maintenance
pending suit against the other. This is maintenance between the date
when the petition is lodged at the court and the pronouncement of decree
absolute. It is intended to meet urgent and immediate needs in the short
term.
Orders Subsequent to Divorce
- Maintenance for a spouse
- Maintenance for a child
- The Child Support Agency deals with many maintenance issues
relating to children. However, it may be possible, in certain
circumstances, to pursue top up maintenance from the court,
or to pursue a step-parent for maintenance in respect of a child.
- Lump Sum
- A cash sum can be sought from one party by the other
-
Property Adjustment Order
- An order that the property be transferred from one person to
the other
- Transfer of Property subject to a charge
- This involves deferring payment of the other partner's interest
in the property
- Leaving property in joint names, which once again involves a
deferred payment
Sale of the property
A Pension Attachment Order
- The court can direct the trustees of a pension scheme to make
payment direct to the party without these pension rights.
Pension Sharing Order
- The court can transfer part or all of one spouse's pension,
to a pension for the other spouse.
Factors which the court will take into consideration
The first consideration will be given to any minor child of the family
who has not reached 18. After this, there are a number of other factors
which the court will take into consideration:
- 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, in the opinion of
the court, be 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 of the parties 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.
- The value to each of the parties to the marriage of any benefit
which, by reason of the dissolution or annulment of the marriage,
that party will lose the chance of acquiring.
In addition, the court encourages parties to become self sufficient
and independent of each other after the divorce, so far as that is possible
to achieve. The court may consider that a clean break order is appropriate.
Financial Issues Relating to Children
The Child Support Agency deals with many maintenance issues in relation
to children. However, it may be possible to pursue top up maintenance
from the non-resident parent through the court for maintenance in respect
of a child.
In addition, it is possible to pursue maintenance against a step-parent
although additional criteria have to be considered.
Lump Sum Orders and Property Adjustment Orders are also possible.
When making an order in relation to a child of the family the court
shall have particular regard to the following matters:
- The financial needs of the child;
- The income, earning capacity (if any), property and other financial
resources of the child;
- Any physical or mental disability of the child;
- The manner in which he was being and in which the parties to the
marriage expected him to be educated or trained.
In addition, if the child is not the child of the person against whom
the financial claim is being brought the court must also consider:
- Whether that individual assumed responsibility for the child's
maintenance, and the extent to which and the basis on which he or
she did so, and the length of time for which that was done;
- Whether in doing so that individual knew that the child was not
his or her own;
- The liability of anyone else to maintain the child.
|
Meet the team:
Susan
Record | Alison
Cook | Sarah
Finnis
Pauline
Lewis | Keith
Down
Patricia
Unwin | Mark
Siddons
|
| Children
|
|
|
If a child's mother and father were
married to each other at the time of the birth of the child, they each
have parental responsibility for the child. More than one person may
have parental responsibility for the same child at the same time.
Where a child's father and mother were not married to each other at
the time of the child's birth, the mother has parental responsibility
for the child but the father can acquire parental responsibility for
the child in one of three ways:
- By being registered as the father on the child's birth certificate,
but this only applies to registrations or re-registrations since
1st December 2003
- He can apply to the court for an order that he have parental responsibility
for the child or,
- The father and mother may agree that the father has parental responsibility
for a child using a parental responsibility agreement.
Parental responsibility is defined by Section 3 of the Children Act
1989 as: "all the rights, duties, powers, responsibilities and authority
which by law a parent of a child has in relation to the child and his
property". In many cases where matters are agreed between all parties
with parental responsibility, no order in respect of the child will
be made. Even if an application is made to a court in respect of a child,
the court will not make the order unless it considers that doing so
will be better for the child than making no order at all.
If there is a dispute with regard to a child between parents or people
with parental responsibility then in dealing with any matter involving
the upbringing of a child or the administration of a child's property
or the application of any income arising from it, the child's welfare
should be the court's paramount consideration.
The courts can make orders dealing with where a child shall live, contact
to the other party and other orders in respect of the children as follows:
- "A Residence Order" settles the arrangements to be made as to
the person with whom a child is to live.
- "A Contact Order" is an order requiring the person with whom the
child lives, or is to live, to allow the child to visit or stay
with the person named in the order, or for that person and the child
otherwise to have contact with each other.
- "A Prohibited Steps Order" is an order that provides that no step
which could be taken by a parent in meeting his parental responsibility
for a child, in which is of a kind specified in the order, shall
be taken by any person without the consent of the court. For example
a prohibited steps order, in appropriate cases, can be made preventing
a person parental responsibility taking the child out of England
and Wales.
- "A Specific Issue Order" is one giving directions for the purpose
of determining a specific question which has arisen or which may
arise in connection with any aspect of parental responsibility for
a child. For example, if parents with parental responsibility cannot
agree which school their child shall attend this is a matter which
can be referred to the court under an application for a specific
issue order.
In considering whether to make variable discharge in any of the above
orders, a court has to have regard to:
- The ascertainable wishes and feelings of the child concerned (considered
in the light of his age and understanding).
- His physical, emotional and educational needs.
- The likely effect on him of any change in his circumstances.
- His age, sex, background and any characteristics of his which
the court considers relevant.
- Any harm which he has suffered or is at risk of suffering.
- How capable each of his parents, and any other person in relation
to him the court considers the question to be relevant, is of meeting
his needs.
- The range of powers available to the court under the Children
Act 1989 in the proceedings in question.
Applications for any order in respect of children under the Children
Act are made on an application form, the form of which is set out in
regulations. Applications are usually issued when there is an initial
hearing at which time sometimes it is possible to reach agreement. If
agreement cannot be reached, then the court gives directions for evidence
to be filed in the form of statements and may make other directions
such as ordering a welfare report or other experts to file reports before
the matter comes listed for a hearing to determine the application.
|
Meet the team:
Susan
Record | Alison
Cook | Sarah
Finnis
Pauline
Lewis | Keith
Down
Patricia
Unwin | Mark
Siddons
|
|
|
|
|
| |
| |
