It is important that you understand the options available to you before you decide on how to deal with the financial arrangements between you and your former spouse.
Spouses and former spouses have rights to make financial claims against each other by applying to the court for orders. These rights can only be brought to an end in two ways. The first and most usual way is by a Court Order, either reached by agreement with the other party or following the issuing of proceedings. The second way is where someone obtains a divorce and then re-marries.
In the situation where an individual remarries, unless they already applied for an order for a lump sum or transfer of property, which they are seeking either in the divorce Petition or by way of formal application on Form A, before they re-marry, then they are caught in ‘the re-marriage trap’. They will have lost the right to make those financial claims against their former spouse.
Should the spouses decide not to obtain Court Orders dealing with financial provision, and the re-marriage trap does not apply, then the claims are left open. This situation is not ideal as it creates a degree of uncertainty by leaves the possibility of one spouse making a claim against the other at any time. On the other hand, where one spouse’s financial position is likely to improve substantially it may be in the other’s interest to delay a final financial settlement.
With regard to financial arrangements between you and your spouse, the court takes various matters into account when considering what Order should be made. The Court considers all the circumstances of the case, gives first consideration to the welfare of any children of the family under the age of 18 and, in particular, the Court has regard to the following matters, set out in S25 M.C.A 1973.
The income, earning capacity, property and other financial resources which each spouse 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 be, in the opinion of the Court, reasonable to expect a person to take steps to acquire.
The financial needs, obligations and responsibilities which each spouse 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 ages of each spouse and the duration of the marriage.
Any physical or mental disability of each spouse.
The contributions which each spouse has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
The conduct of each spouse, if that conduct is such that it would in the opinion of the Court be inequitable to disregard.
The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring (most usually pension provision).
The aim of the court is to achieve fairness. Often a key factor is the reasonable needs of yourself and your spouse. Resolving the financial matters following divorce is very complex and legal advice should always be sought. It is an art rather than a science, which is why it is recommend you speak to an experienced family Solicitor.
Both you and your spouse have an absolute duty to each other and to the Court to disclose fully your financial position so that a proper financial arrangement can be made.
The resolution of the financial matters on divorce can be a complex and daunting process. Whether you are able to resolve matters independently or require the Court’s assistance, it is important that you take legal advice to ensure that the final Order is fair and reasonable in all the circumstances.
We understand that separation and divorce is a difficult time for everyone, particularly when matters do end up in court. The team at Terry Jones have vast experience in representing individuals in court. We will ensure that you fully understand the process and implications of each step and take the time to truly understand your situation and needs to help secure the best possible conclusion.
For a free initial call to talk through any concerns or answer any questions you may have around separation and divorce, fill out the form below and a member of our team will be in contact with you.
Solicitor – Head of Family Law
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