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Divorce Law & Separation – the law & financial Issues

Perhaps your greatest worry when considering separation or divorce will be the financial implications:-

·        There is often a family home to consider - how will the mortgage or rent be paid if one partner leaves?  

·         Will it be possible to save the home for the benefit of the children?

·         If it has to be sold, how will the proceeds be divided to ensure that both partners obtain the fairest deal?
 

There is also the question of how savings or investments should be dealt with, how other family assets - the car, the jewellery - should be shared.

Often, all the above proceedings need to be dealt with at the same time.  We will ask you to provide us with detailed information about your financial circumstances to enable us to advise effectively on the best solution available to you.

Where couples are divorcing, an application may be made to the Court for a number of orders including:-

Property Adjustment Orders

Adjusting or determining the parties' interests in a property.

Lump Sum Order

Awarding a sum of money to one of the partners.

Periodical payments / maintenance.

Maintenance paid by one partner to the other - usually but not necessarily by the husband to the wife.

Following most divorces, a financial “Clean Break" order is obtained.

When all the financial details have been settled, hopefully by agreement, an Order is made by the Court dismissing all further financial claims by both parties against each other.  This means that after the order is made, both partners are free to make whatever financial arrangements they wish without fear that their former partner will make any claim against them.

Pensions
Before making a "Clean Break" order, the court must

be satisfied that the parties have disclosed honestly to each other full details of their financial position, including their pension rights.

Separation

Where appropriate, the court may make orders directing that payments are made from one partner's pension fund to the other partner.  It is crucial when advising on financial matters within divorce that we consider the parties 'pension rights.

All these considerations apply where divorce proceedings are taking place.  However, we can also advise where married partners are separating but do not wish to start divorce proceedings

·   Maintenance application in the Magistrates Court

·     Separation Agreements

Unmarried couples may equally need advice about financial issues when separating. Unmarried couples do not have the same legal rights and obligation as married partners. For example, a woman who has been living with her partner, even if she has children with him, has no right to claim maintenance for herself, and no right to claim a share of her partner's pension.  Urgent advice should be sought if you are separating and are not a legal owner of the home in which you live.

Maintenance & the CSA

Maintenance for children is now usually dealt with by The Child Support Agency (CSA)

The CSA has powers to make a parent pay maintenance for a child. The amount of maintenance is calculated using a strict formula.

Where the parent who cares for the child is receiving Income Support, the CSA will automatically make a maintenance assessment against the other, absent parent.

In cases where the carer is not receiving Welfare Benefits, he or she can ask the CSA to make a maintenance assessment but this is not compulsory.

In some limited cases the court still has powers to make maintenance orders for children. For instance against step-parents or where "top-up" maintenance is needed over and above the amount awarded by the CSA.

For further information contact Sarah Perkins , Tel 0115 988 6718, e-mail Sarah Perkins

Sarah Perkins is head of The Family Law Department at Nottingham Firm Andersons Solicitors and can be contacted by phoning 0115 9470641 or emailing Sarah Perkins

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