During or after a divorce, annulment of a marriage or civil partnership, judicial separation, or dissolution of a civil partnership, a couple may reach agreement between themselves on how to divide their property and income, sometimes with legal advice. This may be embodied in a legally binding ‘Consent Order’ approved by the court.
When parties cannot reach an agreement between themselves or with the assistance of a solicitor, an application for a Financial Order may be decided by the court. This might involve, for example, the division of property and pensions, and the payment of maintenance.
There is now a general requirement for couples to attend a Mediation Information Assessment Meeting (MIAM) before issuing an application for a financial remedy. The purpose of the MIAM is for the couple to find out about and consider mediation, or other forms of non-court based dispute resolution.
There are some exceptions to this requirement, for example where there is evidence of domestic violence or of a risk of domestic violence; in these cases the applicant may proceed straight to court.
Under the Matrimonial Causes Act 1973 the court has a wide discretion when deciding an application for a Financial Order on or after divorce, annulment of marriage or judicial separation.
The court is “to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen”.
There are various factors taken into consideration within court proceedings when determining what is a fair and appropriate settlement. Those factors include:
- The income, earning capacity, property and other financial resources of each party;
- 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 party to the marriage 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, whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
Each case is dealt with on an individual basis according to its facts.
How can we help
If you are separating from your spouse or civil partner and need further advice in relation to the division of assets, please contact a member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
A member of the team will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
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