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
- sharing of assets
- house contents and personal belongings and
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.
Example: The Dangers of claims that are not dismissed
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.
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 £50.
This section has free information about:
- Finances and consent orders (on this page);
- how the court makes the order and what factors it takes into account;
- what orders the court can make;
- the court procedure for financial claims;
- how a pre-nuptial or pre-registration agreement can help regulate finances in advance;
Elsewhere on this website you will find free information about:
- child maintenance through the Child Maintenance Service (previously the CSA),
- other financial provision for children through the courts.
If you litigate through the courts about finances, this is naturally going to cost money on lawyers (as well as lost wages for days in court and stress etc). You may therefore argue about a shirking pot to divide. Mediation is a good and inexpensive way to come to an overall settlement without going to court. Therefore, it is compulsory in most cases for anyone who wants to make an application to the court for a financial order to attend a Mediation Information and Assessment Meeting (MIAM) first.
For advice on your specific circumstances please contact a solicitor
20 May 2016 by Andrea Woelke