The law on family breakdown gives the courts a wide discretion to do what is fair in all the circumstances, but you may be unsure what weight should be given to all the various factors applicable in your case. It is not always necessary to make an application to court to resolve financial matters. However, even if matters are resolved by agreement, any settlement must take into account the factors the court is required to consider by law.
- How does the Court decide what is fair?
The court will consider all the circumstances of the case including a list of factors set out by law in The Matrimonial Causes Act 1973, section 25:
- 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. Very rarely will it be appropriate to raise the issue of conduct.
- 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).
- What Orders can the court make?
There are a wide range of Orders which the court can make to achieve a fair division of the capital. These include lump sum orders (for the payment of money), property adjustment orders (for example to transfer property from joint names into one party’s sole name) and orders for sale (for example, of the family home). The court can also order a pension fund to transfer part of the fund to the member’s spouse (a "Pension Sharing Order") or to pay part of the pension income to the spouse (a "Pension Attachment Order"). The court can also make maintenance Orders, known as Periodical Payments Orders, including "Maintenance Pending Suit" which is maintenance paid while the divorce proceedings are ongoing and before a Final Order is made. We will advise what orders may be appropriate in your case.