In England couples can divorce or dissolve their civil partnership without the court looking at any financial aspects. Even if the financial claims are formally made in the application, the divorce or dissolution petition, this does not start financial court proceedings.
While in other countries the law has different rules for different financial aspects, in England
are all looked at together and the court has a discretion on what orders to make taking into account all the circumstances of the case.
There is no limitation period for making claims for financial provision and they can be made many years or even decades later if they are not dismissed by a court.
Dennis and Jean married when she was 19 and he was 26. They have three children. 13 years later they separated and then divorced and the children grew up with their father. Jean received a house and some investments in the settlement, which produced an above-average income. Jean’s maintenance claims were not dismissed. Jean chose not to work although she could have done. Dennis remarried and he and his new wife worked hard to build up his business. They have two children together. Dennis’ assets are now worth about £4.7m.
21 years after they separated, Jean sells her house and all her investments and emigrates to Australia with about £328,000. She lost about £80,000 in bad investments and spent a lot on traveling around Australia and then living there in expensive rented accommodation. 27 years after the separation Jean made an application for maintenance and was awarded maintenance of £16,500 per year to be paid as a lump sum of £202,000, reduced on appeal to £3,000 per year.
Jean had spent more than £100,000 on her legal fees and had then exhausted her savings. Because she did not have the money, Dennis, although he was successful at the appeal, did not get an order for Jean to pay his costs. He was therefore an estimated £140,000 out of pocket.
You can read the full case report here.
If you think that there is no way that you will be able to come to an agreement on finances, you may want to get the court involved at an early stage. There may be other reasons, such as the need for immediate maintenance or an order to freeze a bank account. You can start the financial court proceedings on the same day that you start your divorce at court or you could wait and start them at any other time during your divorce proceedings or even after the final divorce order.
Before you can start court proceedings about children or finances on divorce or civil partnership dissolution you usually have to meet with a mediator, who will give you information about mediation and other dispute resolution options. This has to be a mediator who is specially trained to provide such a Mediation Information and Assessment Meeting (MIAM). The mediator may then also meet with the other person in your case and you may then attempt mediation. If mediation is not suitable or breaks down, the mediator will give you a form, which you can then use to show that you have gone through this process when you start court proceedings. In urgent cases this may not be necessary and you need to consider this with a specialist solicitor.
If you come to an agreement, the court can approve that agreement and make an order reflecting it, called a consent order. This will give both of you security that there is no come-back in case one of you changes your mind. The court does not automatically rubber-stamp any agreement, but in most cases the judges approve the agreement reached. The earliest the courts can approve an agreement is after it has made the decree nisi, the conditional divorce order, or the conditional order of civil partnership dissolution. Therefore, if you want the security of a court order, you may want to consider starting a divorce or application for dissolution of a same-sex civil partnership earlier rather than wait for two or five years’ separation.
A solicitor can draft such a consent order for you and explain to you what other papers need to be sent to the court. There are no set forms for the order, although solicitors have standard precedents for most parts of the agreement. The fee for the consent order is only £45.
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For advice on your specific circumstances contact Andrea Woelke at Alternative Family Law: ring us on 020 7407 4007 (+44 20 7407 4007 from abroad) or email us (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).
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This is an outline of the law, practice and procedure in England and Wales. It should not be taken as specific advice. All families and couples are different. The law may have changed since this was written and we therefore accept no liability for inaccuracies. Where examples are given, your personal circumstances may vary slightly, but the difference may be significant for the outcome of the legal process. Contact us for specific advice on your own circumstances.
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