Girlings logo
TOP
Make an
enquiry

Make an enquiry

Please complete the form below and a legal adviser will contact you.
By submitting your details through Make an enquiry your data will only be used to contact you regarding your enquiry.

Finances

Family Law

Meet Sarah Finnis

Courts do not automatically consider financial matters when a divorce or civil partnership dissolution is lodged.

Following the breakdown of a marriage or civil partnership financial matters are to be dealt with by negotiation, mediation, collaborative law, arbitration or by making an application to court. The same legal principles as to how financial matters should be resolved are applied. Our Family Law team are available at our offices at our offices in Ashford, Canterbury and Herne Bay to offer you advice tailored to your own specific circumstances.

Financial remedies

It is important to address financial issues if your relationship breaks down. If you fail to address financial issues, you may still face financial claims from your ex-spouse in the future. If a financial agreement is reached then the terms of that agreement can be set out in a financial consent order. Such an agreed order can be lodged with the court for approval as part of the divorce process and then such an order can dismiss those potential future claims. If you do not intend to divorce then you may wish to consider a separation agreement – as referred to below.

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. The starting point is equality and the courts will consider needs, sharing and contribution of both spouses. There are a number of other factors which the court will take into consideration which include:

  • The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future
  • 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
  • The contributions which each of the parties has made or is likely, in the foreseeable future to make, to the welfare of the family, such as looking after the home or caring for the family
  • The conduct of each of the parties
  • The value of the loss of any benefit that each of the parties might incur on dissolution or annulment of the marriage.

The court is keen to encourage each party to become financially independent of each other after the divorce, as far as possible. In this respect the court may consider that a clean break order is appropriate.

Financial disclosure

Both parties have a duty to provide full and frank financial disclosure. Such financial disclosure is often made voluntarily in advance of any court application being made. This provides each party with the opportunity of seeking their own independent legal advice and then for negotiations to commence.

The court process – Form A and Form E

A court application is for financial settlement is made by lodging a form (Form A) with the court together payment of the court fee. The court should set a date for a first appointment in 12 - 16 weeks. In most cases, it is necessary to have attended a Mediation Information and Assessment meeting to discuss mediation for divorce with a mediator before making this application.

After the application has been lodged it is necessary to gather together information about your financial circumstances, and include them on a document known as Form E.

After Forms E have been filed, each party may ask questions of the other where issues are unclear, perhaps requiring further documentation to be produced. That first appointment is a procedural hearing and it is unlikely that matters will be resolved fully at that hearing.

The court will consider what further directions need to be made for the future conduct of the case and then list the case for a Financial Dispute Resolution hearing (FDR) on a future date.

Financial Dispute Resolution (FDR) hearing

A Financial Dispute Resolution (FDR) hearing gives both parties an opportunity to reach an agreement, with some guidance from the district judge. If the case cannot be agreed at this FDR hearing, a final hearing will take place on another date when the court will hear all the evidence and make final orders to resolve financial settlement.

Court orders available

The Court has wide powers to make a number of different orders depending on the individual circumstances of each case.

Maintenance pending suit

It is sometimes possible for one spouse to obtain an order for a 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.

Other financial orders

Some other common court orders are:

  • Lump Sum: A cash sum paid by one party to the other
  • Property Adjustment Order: An order that property be transferred from one person to the other, or form joint names to one party’ s name
  • Sale of the property
  • Pension Orders – such as attachment or pension sharing order – a pension sharing order transfers part or all of one spouse's pension to the other spouse.
  • Maintenance for a spouse.

Child maintenance is usually now dealt with by the Child Maintenance Service. Court orders can be made providing for child maintenance but these generally only last for one year.

Separation agreements

If you have separated, but do not wish to divorce, it may be possible to enter into a separation agreement resolving financial issues between you and your spouse, or perhaps setting out the agreed arrangements for the children. While a separation agreement may set out arrangements for any children, this would not be enforceable through the courts in the same way as a child arrangement court order.

What does a separation agreement cover?

A separation agreement can only be achieved by consent. It is nothing more nor less than a contract between a couple explaining how they intend to live their lives and resolve financial issues between them.

It cannot oust the jurisdiction of the court. In other words the parties to the separation agreement cannot override the authority of a court to determine issues. It is only a court order that can for example, legally prohibit one party making a financial claim against the other in the future or against a party’s estate in the event of their death.

With a separation agreement the parties are still legally married and this can have implications particularly in relation to pensions or upon a party’s death. There may also be ongoing tax issues that need to be considered.

Some types of financial settlement, such as an immediate pension sharing order, cannot be provided for in a separation agreement. A pension sharing order can only be implemented following the final divorce decree, the decree absolute or a final order in dissolution proceedings following the breakdown of a civil partnership.

For a great deal of couples a separation agreement is their preferred choice of resolution and our Family Law team regularly prepare such agreements.

For further advice, please contact a member of our Family Law team based in Canterbury, Ashford and Herne Bay.

Our Experts

Sarah Finnis

Head of Department
Family Law

Amanda Wilson

Partner
Family Law

Gemma Purt

Partner
Family Law

Curtis Wray

Associate Solicitor
Family Law

Megan Mahesan

Assistant Solicitor
Family Law

Related Pages

SARAH FINNIS PROFILE 2

Finances on Divorce or Separation