In the event that agreement on a divorce settlement cannot be reached on a consensual basis it may be necessary for one of the parties to make an application to the court, which has a wide discretion, for determination of divorce finance issues. There are a number of factors that the court must take into consideration when making its determination including present and future needs, resources, earning capacity, age, marriage duration and the contributions of each partner to the family finances.
Maintenance orders can be made by the court either for a fixed or indefinite period with or without contingent conditions. If the recipient of maintenance remarries the order automatically ends.
- Clean Break
A clean break divorce settlement usually occurs where the matrimonial assets are sufficient to provide both parties with their needs and neither party will have to claim maintenance or capital from the other in the future.
There may be tax implications relating to transfers of property. Pre-1988 maintenance orders have distinct tax advantages. In both cases professional divorce finance advice should be taken.
- Matrimonial Home.
If there is substantial equity in the home it may be possible that a sale of the property and a division of the sale proceeds may meet both parties needs. Where there is insufficient equity and the home is needed as a home for the children of the family the court may defer sale of the property until the youngest child leaves full time education.
Courts are reluctant to order the sale of a family business or to break a business up if that business will supply the income to support the family in the future. There is a possibility that a court may look at a substantial business and order the sale of certain assets that do not affect the earning power of the business in order to provide necessary capital.
The court is entitled to bring all assets owned by the spouses into account when considering a divorce settlement. It does not matter when or from where the assets were acquired however the court may treat assets acquired jointly in a different manner to assets brought into the marriage or assets acquired as a result of the efforts of just one of the spouses.
The court will consider the pecuniary advantage that one or both spouses receive from any trust of which they are beneficiaries and may require information from the trustees to ascertain the full benefit conferred on any trustee.
Possible future inheritances may be considered by the court when making an award.
Consideration should be given to the fact that a divorced spouse usually loses entitlement to a partner’s death in service benefits in addition to losing a share of any retirement pension. A claim for compensation should be made for the loss of a share of the spouse’s retirement pension or if the divorce was finalised after 1st December 2000 the pension should be divided using a pension sharing order.
Our nationwide network of specialist lawyers will give initial free advice on all matters relating to matrimonial disputes including dissolution of marriage, separation, injunctions, divorce finance and agreements and court orders relating to custody and access to children without further obligation. If after talking to us you decide not to take matters further you are under no obligation to do so and you will not be charged anything at all.