Money and Property

The court has wide and flexible powers to make orders in divorce. It is impossible to give anything but general information in this leaflet because each family is different. You should certainly take some legal advice about your situation.

.: What orders can the court make in divorce proceedings?

The court can make orders for:-

• Maintenance (periodical payments) for your husband or wife.
• Maintenance for your children but only in some circumstances.
• A lump-sum order for your husband or wife (and for the children, if necessary).
• A transfer of property order (such as putting the house in one person's name or selling it) for your husband or wife; and
• Giving you or your husband or wife a share or claim on the other's pension fund. This could involve having a share of the fund now so that you get a pension fund of your own, or having a payment out of it when you retire.

.: How can I get a court order?

Once divorce proceedings have been filed, either you or your husband or wife can file a form at the court saying that you want to put in a financial application. Both of you will then have to fill in a long form with all your financial details. You have to exchange these with each other at the same time. The court will fix an appointment to check that all the evidence has been filed and there will be a session at court to see if you can reach an agreement. If you can, the court will make the agreement into an order. If you can't, there will be a full hearing and the judge will decide how the money is to be divided up. Forms and information leaflets are available from the court service web-site.

.: Does the house have to be sold?

No. There are plenty of different ways of dealing with the house. For example, you can:-

• Change the shares you both hold in it.
• Agree to delay the sale until some point in the future.
• Decide how the proceeds of the sale can be divided; or
• Decide who is to pay the mortgage.

If you cannot agree on one of these things, the judge will make an order.

.: How is maintenance for a husband or wife worked out?

The court doesn't use a formula to work out maintenance, but it does take account of different things. These are:

• The income, earning capacity, property and other financial resources of each of you.
• The needs and financial responsibility you each have.
• The standard of living you enjoyed as a couple.
• Your ages, physical or mental disabilities and the length of your marriage.
• The contributions that you have each made to the family, such as financial contributions or bringing up the family.
• Your behavior to each other, if the court thinks it would be unfair to ignore it. In practice, this means extremely bad treatment, such as permanently injuring your husband or wife; and
• Any benefits, such as pensions that you might lose because of the divorce.

A maintenance order can last either for a fixed period or for as long as both of you are alive.

.: Can an order be changed after it is made?

Either of you can apply to the court to alter a maintenance order if your situation changes. Orders for lump sums or transfers of property cannot normally be altered once they are made. This applies to orders made by agreement as well as those decided by the judge, so it is important to make sure that you have thought about all the things that might happen in the future before you commit yourself to an agreement.

.: What should I do if I find that my husband or wife is getting rid of property to stop me getting it in divorce proceedings?

Tell your solicitor, who can apply to a court for an order to stop the sale, and also get things back if they have already been sold. You have to be able to prove that it is going to, or has, happened and that it will affect a final financial settlement. The court can freeze all your husband or wife's assets to protect your interests.

.: Making arrangements should you die.

If you are separating or thinking about divorcing, you also need to talk to your solicitor about making a will. Your husband or wife is still your next of kin until the final decree of divorce, and may be a beneficiary if you die and you have not made a will. If you have children you also need to think about providing for them.

.: Do I need a guardian for my children?

If you and your husband or wife both have parental responsibility (which is the normal situation), then if either of you die, the other will legally have sole responsibility for the children. Most parents would agree that this is the best arrangement. But there may be reasons why you would not want this to happen.

For example, your ex-husband or ex wife may have lost touch with the children, or you may have had a legal dispute about care arrangements for the children. In cases like this, you may feel that you would want another person to have legal responsibility for your children (as well as your husband or wife), and you can put these wishes in your will, or in a simple signed document. However you would need to talk about this with your solicitor first.