Financial commitments towards a spouse do not end on divorce. Even if a couple has been separated and divorced for many years then, providing that they have not remarried, it is still possible for an ex-wife or an ex-husband to make a claim against their former spouse.
For that reason, it’s very important to resolve financial issues alongside divorce proceedings. It is best to resolve financial issues by way of a court order as this is then binding on both parties and prevents a claim being made at a later date.
Sometimes the divorcing couple are able to discuss matters and decide how their assets and liabilities should be divided. This is often easier where they do not have many assets.
If an agreement case be reached then it is not usually necessary to actually attend court. In these circumstances a clean break order or consent order can be made. Which order is most appropriate will usually depend on the size of the parties’ assets but both have the same effect of formalising an agreement. The court will review the proposed order and then, so long as it thinks the order is fair and reasonable on both parties and meets both their needs, make the order that it has been asked to make.
In deciding whether a proposed order is fair and reasonable the court will consider:
- the income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future
- the financial needs, obligations and responsibilities that each person has or is likely to have in the foreseeable future
- the age of each person and the duration of the relationship
- any physical or mental disability of either of the persons
- the contributions each person has made or is likely to make in the foreseeable future to the welfare of the family
- the value of any benefit which a person will lose the chance of acquiring by reason of the separation
- the conduct of the parties involved, but only in exceptional circumstances
If the court does not think that a proposed order is fair and reasonable then the court can refuse to make the order.
If an agreement can’t be reached between the divorcing parties then an application for a financial remedy will need to be made. In this case the court will consider evidence from the parties on their assets, liabilities and needs and then make the order that it believes will best meet those needs. It is usually best to try to reach an agreement on financial matters as this is likely to be cheaper in terms of legal fees and to remove the degree of uncertainty about what order the court might make.
Once a financial order is in place the financial ties between a divorced couple are permanently severed.
If you are considering entering into a clean break or consent order arrangement or, in the absence of an agreement, are considering a financial remedy application then obtaining professional advice from expert and experienced family lawyers like Paul Dodds Law can help to ensure that you receive a financial settlement that meets your needs now and in the future.