An application to a court for a divorce maintenance payment should be as a last resort. It is far preferable for the parties to negotiate the terms of a settlement, especially the terms of a clean break order, with the assistance of their solicitors. If agreement can be reached the terms can be incorporated into a consent order which can then be ratified by a court on an agreed consensual basis.
The matrimonial courts will only become involved in a couples financial affairs if they are invited to do so by way of an application by one of the parties to the marriage. The court will not generally consider contested financial arrangements for support of the children of the family which must normally be referred to the Child Support Agency. The court has wide powers that it can exercise as a result of the issue of a financial application following divorce or judicial separation proceedings which includes:-
- An order for a divorce maintenance payment.
- An order for a lump sum.
- An order to set up a trust fund by payment of a lump sum to provide periodical payments.
- An order for transfer of property or assets.
- An order to share pension provision.
- A clean break order
Unlike the Child Support Agency there is no fixed formula used by the county court for producing a simple calculation to establish a fair and reasonable division of income and assets between the parties. There is some statutory guidance which contains a list of points which are to be taken into account as follows :-
1. available income and resources
2. the likely future needs of the parties
3. the standard of living prior to the separation
4. the age of the couple
5. the duration of the marriage
6. the physical or mental attributes of each individual
7. the contribution to the ongoing welfare of the family
8. conduct (in rare cases)
9. change in financial status as a result of the divorce or separation
In assessing the parties needs the court can take into account all assets no matter where they came from. It does not matter who brought what into the marriage nor how or where subsequent assets were acquired as the court has full power to include the value of those items in its overall assessment. The court may however treat certain assets differently in its assessment to those assets jointly acquired by both parties during the course of the marriage.
The court is required in each case to consider whether or not it is possible to deal with the assets in such a way that a clean break order can be made whereby the order is final and once complied with neither party can return to court. This would mean a once and for all settlement without any continuing divorce maintenance payment. The parties would in effect walk away from each other with no need for any future contact.
Except in certain unusual cases a the matrimonial court can no longer make an order for child maintenance. If agreement cannot be reached between the parents it will be necessary for an application to be made to the Child Support Agency for determination of child support. Applications are assessed and calculated using a formula laid down by Parliament. The assessment will only last until the child is 16 years old unless the child continues in full time secondary education whereby the assessment continues until the child’s 19th birthday. If full time education continues thereafter it will be necessary to make a further application for continuance.
Our nationwide network of specialist lawyers will give initial free advice on all matters relating to matrimonial disputes including dissolution of marriage, separation, injunctions, 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.