The Courts have a wide range of powers to make financial orders, including the provision of periodical payments, lump sums (including pension sharing), pension attachments, property adjustment, transfer and settlement of property, and variation of settlements that have already been made.
The Courts can make these orders at the time of granting a decree nisi or on the grounds of a legal separation. Orders take effect at the stage of decree absolute in the context of both divorce and nullity. If one spouse is likely to inherit or gain a sum of money in the near future, the Court is also able to adjourn proceedings until the inheritance is received to ensure it is considered.
Civil partners are also entitled to apply for financial orders on the dissolution or annulment of the civil partnership.
Lump sum orders
Lump sum orders require one party to make a payment to the other party, or to a child of the family. This may be made in one go or in instalments.
Property adjustment orders
The Court has a great deal of scope to divide the assets of the parties using a property adjustment order. This includes transferring property to one of the parties, or to a child, transferring the legal entitlement of the property for the benefit of one party and/or the children, or to vary or extinguish the rights of either party in the property.
Transfer of property order
The Courts can order a property to be transferred from one party to the other and/or transferred for the benefit of the children. Although most common in relation to the family home, these orders can also relate to other assets such as cars, shares, holiday property, antiques, jewellery and furniture. A Court order can also relate to the transfer of a tenancy to one party or another
The family home
The family home is usually one of the most valuable assets in matrimonial /civil partnership proceedings. The first priority is providing a home for any minor children. In some cases, a sale of the home and division of the net equity will enable both parties to adequately rehouse but in many cases, the available equity is insufficient which means that the home will need to be kept for the benefit of the parent with care of the children. In these situations, the court can order that i) the property is transferred outright to the parent with care (subject to the mortgage provider’s consent) and a legal charge to protect the remaining spouse’s interest is placed with a view to a future sale when the youngest child has ceased their full-time secondary or tertiary education. Alternatively, ii) the spouse receiving the property may be in a position to remortgage and simultaneously pay the other party a lump sum (or installments) for their interest in the property; or iii) the home may need to remain in joint names until the child(ren) reach majority when the home will be sold and the cash paid divided.
Periodical payments or “maintenance” relates to an order for regular (weekly or monthly) payments by one party to the other. These payments can be secured against assets for example savings or shares although the assets cannot be liquidated during the life of the order.
The options available to the Court are:-
- An Order for the joint lives until death, remarriage, or entering into a civil relationship. This could be suitable where one of the parties has an illness or disability or unable to support themselves, or when small children are dependent upon the parties. The Order could be varied or discharged later on;
- An Order for a limited term with no extension. This Order may be suitable when one of the parties requires a period of time to become financially independent. An application will sometimes be permitted to vary the order;
- An Order for a limited term but with no prohibition on extension. This may be suitable to give one party an opportunity for a longer period of payments. Variation, extension or discharge may be allowed on application.
- To dismiss the application.
- Remarriage is an absolute bar to the receipt of periodical payments but cohabitation does not automatically result periodical payments being stopped.
Interim Financial Orders
- Maintenance pending suit
- When a party makes an application for a maintenance pending suit, usually on a petition for divorce, judicial separation, nullity, or civil partnership dissolution, the Court can order either party to make periodical payments for his or her maintenance for such term as the Court believes reasonable. Payments cannot start before the date of the presentation of a petition and the term will end on the date of the determination of the case.
- Most couples are able to agree the amount of maintenance to be paid between themselves pending the outcome of their case.
- Interim periodical payments Order
- In some situations, where agreement about the finances has not been reached prior to the Decree Absolute, and an Order for maintenance pending suit comes to an end, a Court can make an interim periodical payments Order as a temporary measure until such time as a financial resolution is reached.
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