Divorce & Financial Settlement
The first requirement is that both parties file Form E Financial Statements before the FDA. The Form E is a lengthy document and you are required to attach supporting documentation to the form. We have vast experience in completing Form Es and can relieve the burden of completing this form by doing the work for you.
The Form E is intended to provide the parties with a clear picture of each other’s assets and it is not usually possible to reach a financial settlement without going through the process of full and frank financial disclosure.
There is duty for each party to provide full and frank financial disclosure during this process. If you are concerned that your spouse may try to hide assets or that you believe they have not disclosed all of their assets, please let us know as soon as possible so that we can determine the best course of action.
We will assist you in preparing for any hearings and arranging representation for you at the hearings.
What factors does the court consider?
The factors which will be taken into considered by the court when making its decision are commonly known as the section 25 checklist.
The first consideration is the welfare of any minor child of the family who has not attained the age of 18.
- the income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future, including, in the case of earning capacity, any increase in that capacity that it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire
- the financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future
- the standard of living enjoyed by the family before the breakdown of the marriage
- the age of each party to the marriage and the duration of the marriage
- any physical or mental disability of either of the parties to the marriage
- the contributions that each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
- the conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it
- in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit that, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
The court decides how to exercise its jurisdiction using the factors set out in section 25 as set out above. There is no hierarchy to these factors: in each individual case, different factors will carry different weight.
The court must also consider whether to impose an immediate or deferred clean break so as to sever the financial obligations the parties have toward each other.
What types of orders can the court make?
Maintenance Pending Suit: These are periodical payments ordered to be paid prior to the marriage being dissolved by the decree absolute.
Property Order/Order for Sale: This is an order that one party transfer to the other some property. In the majority of cases this will be actual property such as a house, however, personal property, chattels, may be subject to a transfer of property order.
Lump Sum Orders: This is an order that one party pay to the other a sum of money. The lump sum may be payable in one go or by way of instalments. There is no time limit on the amount that can be awarded.
Periodical Payments: Otherwise known as maintenance payments. Periodical payments are a continuing obligation, normally an obligation to pay a certain amount to your ex-spouse every week or month as opposed to a final lump sum payment or transfer of property. Maintenance payments can be on-going or for a certain period of time. In addition, maintenance payments can be varied. A party who has remarried cannot apply for periodical payments, even if the application was made before marriage.
Secured Periodical Payments: These are rare but involve a hybrid of periodical payments with an order that they be secured, i.e. against a property so as to ensure that they are paid.
Pension Orders: Aside from the matrimonial home, a pension fund is likely to be the most substantial financial investment a party has. The court can make various orders in relation to pensions such as pension sharing or earmarking part of a spouse’s pension for the benefit of the other spouse.
Financing may be available if you are worried about the costs of legal process.
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