When a marriage breaks down one of the practical considerations must be what to do in relation to the matrimonial finances. Those finances may include the family home, savings, investments, other property, pensions, each parties respective incomes and debts. Where a couple cannot agree about how the assets should be divided then an application to the Court may be required. The process for making a financial remedy application is set out on our financial remedies page.
What Orders can I ask the Court to make?
Making an application to the Court is one thing but you need to consider, perhaps with the help of a Solicitor, which orders you are seeking. Below is a menu of the main orders that can be made by a Court in Financial Remedy proceedings. These orders can only be made once the Court has pronounced Decree Nisi within divorce proceedings with the exception of maintenance pending suit.
- Maintenance Pending Suit – this is a type of interim maintenance that is paid by one spouse to another during the course of financial proceedings. It is usually paid to the lower earning spouse to provide them with an income during the proceedings and sometimes to provide them with money for legal fees. The Maintenance Pending Suit will finish at the end of the proceedings or it will be turned into a periodical payment order which will continue for the joint lives of the parties or it will be for a fixed term.
- Orders for payment is respect of legal services - In proceedings for divorce, nullity, or judicial separation, and including an application for financial relief, the Court can be invited to make an order requiring one party to the marriage to pay to the other (the Applicant) an amount for the purpose of enabling the Applicant to obtain legal services for the purposes of the proceedings.
- Property Adjustment Orders – the Court can deal with property owned by the parties. The Court can order that the former matrimonial home be transferred to one party, usually the spouse who will continue to be the primary carer for the children.
The Court can order that the former matrimonial home or indeed any other property is sold and the sale proceeds divided between the parties. This is less likely where there are children concerned and the only property owned by the parties is required in order to house the children.
The Court can order the transfer of a property to one party but that the property is then registered with a charge in favour of the person who is losing the benefit of the property. This will ensure that the other party and usually the children are housed but that the husband (typically) has his interest protected. His interest will only become payable to him on the occurrence of certain triggers;
- The wife’s remarriage
- The wife’s cohabitation with another party for more than 6 months
- The death of the wife
- The children of the family reaching 18 or finishing secondary (or tertiary) education, whichever is the later
- Periodical payments or secured periodical payments – this is more commonly referred to as spousal maintenance. A sum of money is paid by one spouse to another usually on a monthly basis. This order may continue for a set period or it may continue for the joint lives of the parties. Secured periodical payments are much rarer in that the party against whom the order has been made must demonstrate to the Court that they have secured a fund of money from which the payments will be made.
- Lump sum Order – this is simply an order providing for one spouse to pay to the other a lump sum of money. The lump sum can be paid in instalments if the Court considers that to be reasonable. Payment by instalments might be necessary where a party needs to secure funds from various different sources or will be taking advantage of assets that they are due to receive in the future.
- Pension sharing or pension attachment orders – the Court can order that one party’s pension is shared so that a percentage of the pension is paid into the other spouse’s existing pension fund or that a new pension fund is created to receive the pension credit. A pension attachment order is an order which provides for one spouse to receive a percentage of the other spouse’s pension benefits when these are paid in retirement. The percentage can also attach to any lump sum due. This can be a complex area and if you require further information please visit our Pensions and Divorce page.