Divorce and Separation

When determining an appropriate financial settlement, the Court’s first consideration will be the welfare of any minor children of the family who have not yet attained the age of eighteen, this does not however mean that their welfare overrides all other considerations. The Court must then consider the various factors set out in Section 25 of the Matrimonial Causes Act 1973, which are: (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contributions which 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; (g) 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.

Interim maintenance is financial assistance paid by one spouse to the other whilst divorce proceedings are progressing. Either party is able to make an application for interim maintenance once the divorce petition has been filed with the court. The applicant will need to prove that financial assistance is required from the other spouse in order to meet their income needs; the focus will be on their immediate needs rather than longer term requirements.

FDR is short for Financial Dispute Resolution hearing. It is the second hearing in matrimonial finance proceedings. Both parties should have all of the financial information required at this stage to be able to negotiate and attempt to reach a settlement. The purpose of the hearing is to encourage the parties to negotiate on a “without prejudice” basis with the Judge assisting by giving an indication in respect of issues in dispute. If matters cannot be agreed, then a different Judge will need to hear the Final Hearing and the parties will not be held to their position asserted at the FDR. This is because it is “without prejudice” in order to promote constructive negotiations.

Both the capital value of any business that a spouse has an interest in, and the income it generates will be taken into account on divorce. How the business is treated on divorce will depend on the other assets in the case and how dependent the couple are on the income from the business to meet their outgoings. Businesses are dealt with in different ways depending on the circumstances of the case.

In England and Wales, the Court will pronounce a Decree Nisi when it is satisfied there is no reason that the divorce should not proceed. Once Decree Nisi has been pronounced, it is also going to be possible for the court to make final orders relating to the couple’s financial claims. Forty-three days after the pronouncement of Decree Nisi, the petitioner is able to apply to the Court for Decree Absolute, dissolving the marriage.

The parties’ pensions will be considered in financial proceedings. Each party is required to give financial disclosure, including their pension values. It is possible to argue that a pension or some of a pension should not be taken into account and shared for various reasons, however the value and type of the pension will need to be disclosed. Whether the pension is shared will depend on the circumstances of your case.

Decree Absolute would not ordinarily be applied for until financial matters have been resolved, so how soon you apply for Decree Absolute will depend upon how swiftly a financial agreement is reached. The earliest you can apply for Decree Absolute is a statutory period of six weeks and a day after the pronouncement of Decree Nisi. Once the application for Decree Absolute has been filed with the Court, it is usually pronounced within a couple of days, although it may take longer to receive a copy in the post.

In general a divorce can take between 6 and 9 months to resolve if the divorce is not contested. If there is a contested divorce, this can take more than a year to resolve.