Litigation- Financial Remedy
Whether you are undergoing a Divorce, Dissolution of a civil partnership or Judicial Separation, the division of matrimonial finances which have been interlinked overtime will be crucial to enable both parties to the separation to move on with their lives. Whilst in some cases it may be possible to reach an amicable settlement in respect of your matrimonial finances, there may be instances where, due to the emotional pressures of separation, hostility, or simply due to a parties conflicting perceptions as to what one party should receive may prevent an amicable settlement from being reached.
In those circumstances, it may be appropriate to make an application the Court for a Financial Remedy, whereby the Court will determine how matrimonial assets are to be divided by making either one or more of a series of Orders.
At FisherWright solicitors, our dedicated team of solicitors possess extensive experience in Court litigation and will provide you with the comprehensive advice and guidance you require at every step of the Court process. Our principle aims are to secure the clients best interests, to miminise cost, unnecessary time consumption, reduce hostility between parties and ensure that each client receives the best possible settlement in respect of their finances so that they can move forward with their life.
How do I make an application for a Financial Remedy?
Due to the complexity, intricacies of Financial Remedy applications and the importance of comprehensive financial disclosure it is imperative that parties receive specialist advice throughout the entire legal process. Briefly, the structure of the Court process is as follows:
STEP 1: MEDIATION: If you wish to commence proceedings for a Financial Remedy, you and your estranged spouse will be required to attend a Mediation Information and Assessment Meeting (MIAM), the purpose of which will be to determine whether mediation would be suitable
STEP 2: APPLICATION TO THE COURT: To start proceedings you will be required to file an application to the Court for a Financial Remedy. The Court will then ‘issue’ the application and you and your estranged spouse will be sent a Notice of First Appointment, which will be the first hearing.
STEP 3: COMPLIANCE WITH DIRECTIONS: Once the First Appointment has been listed by the Court, the Court will also provide ‘Directions’ which parties must comply with in preparation for the hearing. These Directions will include the exchange of Financial Disclosure, completion of Questionnaires, the drafting of essential documents. It is imperative that such Directions are adhered to and the correct and comprehensive information is stated to avoid adverse consequences in the proceedings, we therefore strongly advise that you seek legal advice at this stage.
STEP 4: THE FIRST APPOINTMENT: The First Appointment is a short hearing which will enable the Court to assess the evidence provided by both parties and assess whether the information provided is comprehensive enough to enable parties to achieve a settlement. If the matter remains unsettled you could be requested to provide further financial evidence in preparation for the next hearing.
STEP 5: THE FINANCIAL DISPUTE RESOLUTION HEARING: This is a hearing In which both parties will be required to put forward proposals for settlement to the other. The Court may also at this stage propose a settlement which they perceive as fair.
STEP 6: FINAL HEARING: If you are unable to reach a settlement at the First Dispute Resolution Hearing, a Final Hearing may be listed. At the Final Hearing, both you and your estranged spouse will be required to provide further evidence and the Court will make an Order stipulating how the matrimonial assets are to be divided.
What will the Courts consider?
In determining a Financial Remedy, Courts will have a wide discretion to make the Orders they consider acceptable taking into consideration ‘all circumstances of the case’. The Courts will commence by considering whether an equal division of assets is achievable or whether circumstances exists which would rationalise an unequal division of assets.
In considering the welfare of a child, the prime consideration of the Court will be the ‘welfare’ of a child. The Court will further consider a range of factors which include the income of each spouse, their ability to earn, financial resources; each individuals financial needs, commitments and responsibilities; the standard of comfort and life both spouses have become accustomed to; whether the spouses have any disabilities; the respective age of both spouses; the duration of the marriage; contributions whether financial or otherwise; the behavior or conduct of each spouse and the loss a spouse may have upon divorce of any benefits.
What Orders can the Court make?
The Family Court can make a range of Orders stipulating how the matrimonial assets should be divided, which include Orders relating to finances or alternatively, Orders relating to the division of properties.
- MAINTENANCE PENDING SUIT: is an Order whereby one spouse will be required to make regular payments towards the other until the divorce has been concluded. In marriages it is common for finances to be interlinked and responsibilities to be charged. If one spouse is essentially the financial contributor and upon the commencement of divorce proceedings stop making payments towards the house, the other spouse may be left unable to maintain the household and therefore a Court may Order a spouse to make regular financial contributions pending the Court proceedings.
- LUMP SUM: One spouse could be Ordered to make payment of a specified substantial sum to the other, this could be to compensate one parties transfer of the matrimonial home, or to enable a party to make mortgage payments. Such payments can be Ordered either in installments or a series of lump sum payments.
- PERIODICAL PAYMENTS: if one spouse is financially ‘weaker’ than the other party, the Court could Order the other party to make regular payments to the other. The Court will have discretion as to the duration of the Order, which could be for a fixed term allowing parties to become financially independent, until children reach the age of 18, for the duration of their lives or alternatively to terminate on marriage of either party.
- SECURED PERIODICAL PAYMENTS: if the Court has concerns regarding a spouse’s ability to maintain regular payments, they may Order that the sum payable be secured against an asset which is capable of meeting those payments. Such an asset could be a property, which generates income or shares, or also assets that can be sold such as a car if the spouse defaults on a due payment.
- PROPERTY ADJUSTMENT ORDER OR ORDER FOR SALE: the Court may when deciding claims on properties Order that a property be sold, that the property be transferred to one spouse, or alternatively to be held on trust in instances where parties have children.
- PENSIONS: the Court may make a range of Orders in relation to Pensions. Such Orders could include a Pension Attachment Order; making a part of a spouses payable to the other when the pension becomes payable. Alternatively a Pension Sharing Order, awarding a percentage of a spouses pension to the other during the time of the divorce.