Property, Capital and Pension Arrangements in Divorce
When parties divorce consideration will need to be given to the financial arrangements and the dividing up of the financial assets of the marriage will be dealt with during the
course of the divorce and is commonly called ‘ancillary relief’.
There are various orders and agreements which can be made;
- A maintenance pending suit (maintenance for one party to pay the other)
- Periodical payments, to the other party for as long as the court decides is necessary - known as maintenance
- Secured provision
- A lump sum order to the other party
- Pproperty adjustment order
- An order relating to a pension fund
Orders and agreements can also be made in relation to the children of the family;
- Periodical payments for the benefit of any children for as long as the court decides, known as child maintenance
- Pay a lump-sum for the benefit of any children
- Transfer property specified by the court to the other party or to a child of the family
- Secured provision
The best way of dealing with financial arrangements in divorce is by agreement. Parties are encouraged to try and reach an agreement with each other as to how their financial
arrangements are to be separated on divorce. If an agreement can be reached then this be recorded in a ‘Consent Order’ which is lodged with the court. Once the Order has been
approved by a Judge this will conclude the division of the assets.
If an agreement cannot be reached then the Court will need to make decisions as to how the assets are to be divided. Either party can commence court proceedings to deal with the
financial proceedings by filing a notice claiming ancillary relief using Form A. The party who files the notice is the Applicant and the other party is the Respondent. During the course
of the proceedings both parties are under an ongoing obligation to make full and frank disclosure of all relevant facts, information and documents.
Once the application has been issued the Court will fix a First Appointment. The Court will also fix dates for filing of various documents. Before the date of the First Appointment, the
parties must simultaneously file and exchange Form E statements which sets out each parties financial position and resources. Attached to the Form E must be;
- Property valuations obtained within the previous 6 months
- The most recent mortgage statements
- The last 12 months’ bank statements
- Surrender value quotes of insurance policies
- The last 2 years’ business accounts
- Valuation of pension rights
- The last 3 payslips and most recent P60
and any other documents which are necessary to explain or clarify the information contained in Form E.
Other documents must also be filed before the First Appointment, both parties must have filed and served;
- A chronology - a list of the important facts in date order
- A concise statement of the issues
- Any questionnaire seeking further information and documents - the questions asked must relate to the statement of the issues
- A notice (Form G) stating whether the party will be able to proceed to the Financial Dispute Resolution Appointment (FDR) at the First Appointment
The First Appointment is to identify the relevant issues in dispute. The district judge will consider the documents filed and give directions as to what further documents need to be filed
and any further evidence which the court considers will require to make a decision and will order both parties attend a further hearing known as Financial Dispute Resolution Appointment ‘FDR’.
The FDR is a hearing which both parties must attend and is treated as a formal negotiation meeting where both parties are encouraged to settle their dispute with the assistance of a District Judge.
If settlement is reached this will be embodied into a Consent Order which will be approved by the Judge.
If no agreement is reached, the District Judge will give further directions for the matter to set down for a final hearing.
Before the final hearing both parties must file and serves a Statement of Open Proposals. At the final hearing the Judge will decide the issues between the parties by hearing oral evidence from
both parties and considering the various factors known as the section 25 factors.
The Section 25 factors are;
- The financial resources which each party has or is likely to have in the foreseeable future
- The financial needs of each party now and in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of the parties and the duration of the marriage
- Any physical or mental disability of either party
- The contributions made by each party to the welfare of the family, including any contribution by looking after the home or caring for the family, and any contributions which either is likely to make in the foreseeable future
- The conduct of each of the parties, if that conduct is such that it would be unjust to disregard it
after having considered these issues the Judge will make a final order.
During the course of the proceedings either party can make offers to settle. If a settlement is agreed the court will turn the agreement into Consent Order.
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