What financial orders can a court make on divorce?Posted: 7 Feb 2022
If you ask the court to make a financial award in a divorce case, it has a number of options open to it. In reaching a decision, it will try to ensure that the financial needs of both parties are met.
If there are children involved, then the court will always prioritise their needs. Financial orders deal with capital and property, maintenance and pensions. The court will put together a combination that it feels deals fairly with the situation. While the starting point is a 50:50 split, where one party is in a financially weaker position, for example, because they have given up their career to care for children, then they may receive a larger share of the available assets.
The courts can make the following orders:
The court prefers that couples agree divorce arrangements between themselves, including in respect of financial matters. If you cannot come an agreement easily, you can go through mediation to try and resolve issues. If you are able to find an acceptable solution, then this will be put in writing and put before the court for sealing into a consent order.
This means that your agreement will become legally binding. It is important to ensure you have a court order in place, even if you are able to separate amicably, because without a court order it is open to your former spouse to make a financial claim against you at a later date, even many years into the future.
Clean break order
If you do not have assets to divide in a divorce, you should obtain a clean break order so that your financial liabilities to each other are ended.
Property adjustment order
This includes property as well as other valuable items such as cars or investments. If the matrimonial home is transferred to one party, then the other party is likely to receive a larger share of other assets by way of compensation.
Sale of property order
The court may order that a property be sold so that the proceeds of sale can be split in a specified way between the parties. This is more likely if there are no children involved. If there are children living in the home, then the court can defer sale until the youngest reaches 18.
Lump sum order
Payment of a lump sum by one party to the other can be either in return for another asset or to support a party who is less financially resilient, giving them the means to retrain or allowing them to stay at home with children while they are young.
Child maintenance order
This is a regular payment to provide for the children of the family, generally made to the parent who has the main day-to-day care of them.
Spousal maintenance order
Maintenance to a spouse may be ordered where one party needs financial support. The court prefers that the parties work towards a point where they can support themselves, so a spousal maintenance order may be for a set period of time only.
Pension sharing order
A pension sharing order allows one or more pensions of one spouse to be shared with the other spouse to equalise the pensions. The percentage share is transferred to the other spouse so this is in a policy in their sole name. They will then be able to draw on it once they reach retirement age and may well be able to draw a tax-free lump sum.
Pension Attachment order
The pension remains with the pension holder and upon retirement, the holder will pay the other spouse a percentage of the pension income and/or pension commutable lump sum and/or death benefits. This is a less popular option as the recipient spouse has no control over when the pension will start and could lose out if the pension holder dies.
Pension offsetting does not involve the court making any pension orders as the value of the pension is offset against other assets, for example, giving one party the matrimonial home while the other may keep their whole pension. This is an option where the pension rights cannot be shared, for example, an overseas pension.
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Article written by:
Julie Taylor is an Partner Solicitor at Spencer West. She specialises in divorce and separation, arrangements for children, nuptial, living together, separation, cohabitation, international arrangements, domestic abuse, injunctions. Alternatives to court, mediation, arbitration and the collaborative process.
Partner – Family Law
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