We’ve seen what types of financial orders the court can make on divorce, but how does the court decide what orders to make? What are the factors the court has to consider?

The law says that says that the court ‘must have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child’, having particular regard to the following:

• 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;

• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future – this is often a crucial factor, especially in cases where the needs of the parties exceeds the available assets;

• 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 – so that in a very short marriage with no children the court may consider it appropriate that each party only takes out of the marriage what they put into it;

• Any physical or mental disability of either of the parties to the marriage;

• 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;

• 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 – note that the conduct has to be of an extremely serious nature to have any effect upon the financial settlement; and

• The value to each of the parties to the marriage of any benefit which, by reason of the dissolution of the marriage, that party will lose the chance of acquiring – this factor is mainly concerned with pensions.

If you would like advice as to how these factors might apply in your case, Family Law Café can help you find it. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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In a case that has been described as “extraordinarily unusual” a wife has appealed against the refusal of the court to grant her a divorce.

Tini Owens, who has been married to Hugh Owens for 39 years, issued divorce proceedings on the basis of her husband’s unreasonable behaviour. However, her husband denied that he had behaved unreasonably, and at a hearing last year the judge refused the divorce, stating that her allegations were “of the kind to be expected in marriage”.

Mrs Owens has now appealed to the Court of Appeal, her barrister arguing that the judge had failed to make “proper findings of fact”. The Court of Appeal is expected to rule on the case shortly.

The case has led to renewed calls from family lawyers for the introduction of a system of no-fault divorce, whereby it is not necessary for one party to blame the other for the breakdown of the marriage.

Image: The Main Hall, Royal Courts of Justice, by Andrea Vail, licensed under CC BY 2.0.

An increasingly common issue in divorce proceedings is one party transferring assets abroad, in an attempt to defeat the other party’s financial claims. But is this a good idea, and what can the court do about it?

The first thing to say is that the English court can make orders relating to overseas assets, in the same way as it can make orders relating to assets held in this country.

However, there can be problems with assets held abroad.

Firstly, it can be difficult tracing and valuing the assets. It may therefore be necessary to instruct experts in the country to which the assets have been transferred, and this can obviously add to the expense.

The other problem is enforcing any order made relating to foreign assets in the country to which they have been transferred. It is a matter for the courts in that country whether to enforce an English court order, and there is nothing that the English court can do to force the foreign court to take enforcement action.

In order to avoid the problem of enforcement the English court will often award a greater share of any assets remaining in this country to the other spouse. It should also be said that the English court will take an extremely dim view of any party attempting to thwart the will of the court by moving assets abroad, and doing so may therefore seriously damage that party’s case.

If the assets have not yet been transferred abroad then the court can make orders freezing the assets to prevent them from being transferred.

If you believe that your spouse may have transferred assets abroad to defeat your claim, or that they are intending to do so, then you should seek specialist legal advice immediately. Family Law Café can help you find this – to contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

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It has been well documented that the number of people divorcing in later life has been increasing in recent years, when divorce rates overall have generally been falling. What is behind the rise of the so-called ‘silver splitter’?

Before answering that question, let’s have a look at the statistics. Figures from the Office for National Statistics show that divorce amongst people aged 60 and over in England and Wales has been rising since the 1990s. For example, in 2011 nearly 9,500 men in this age group divorced, an increase of almost three-quarters compared with 20 years earlier. The trend for women is similar.

What is behind these statistics? Well, several reasons have been put forward.

The first reason is that life expectancy has increased – there are simply more people  aged 60 and over living in England and Wales. In 1991, men aged 60 in England and Wales were expected to live a further 21 years. This increased to 26 years for men aged 60 in 2010. Similar rises have been observed for women. Accordingly, even with a small chance of divorce during each year of marriage, marriages are now more likely to end in divorce and less likely to end in the death of one spouse than they were in 1991.

Another possible reason is a loss of stigma in being divorced.  In 1991, there were 404,000 divorced people aged 60 and over in England and Wales. That figure increased three-fold to 1.3 million by 2010. As it becomes more common to be divorced, there are fewer stigmas attached.

A third possible reason is increasing participation in the labour market by women. The employment rate of women aged 16 to 64 rose from 53% in 1971 to 66% in 2012. This means that women have become more financially independent and are more likely to have built up their own pensions. Therefore in general women are now more able to support themselves outside of marriage than in the past.

Whatever the reasons for the increase, there can be particular problems getting divorced in later life, for example regarding pension arrangements. If you are aged over 60 and are involved in, or are contemplating, divorce then you should seek specialist advice. Family Law Café can help you find this – to contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

Image: Hand in Hand by Garry Knight, licensed under CC BY 2.0.

A new online divorce system is being piloted in the East Midlands Regional Divorce Centre in Nottingham. The pilot, which can run until the 28th of July, will test parts of the system which it is intended will be made available to anyone wishing to issue divorce proceedings.

The pilot will allow certain limited proceedings for a matrimonial order to be filled in via the web. It is anticipated that other pilot schemes will be established which will allow for other types of application to be made online.

The plan to move divorce online is part of the government’s plans to modernise the justice system.

There is no news as to when the online divorce system might be rolled out across the whole of England and Wales.

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If a same-sex couple wish to formalise their relationship then they have two options: to enter into a civil partnership, or to get married.

A civil partnership gives legal recognition to same-sex relationships, putting the civil partners in a similar legal position to married couples.

A civil partnership is formed by having the partnership registered. The formalities and procedure are not dissimilar to those for marriage.

Civil partnerships may be dissolved in the same way as marriages, save that the term ‘dissolution order’ is used instead of ‘divorce’. The grounds for a dissolution order are the same as for divorce, save that a civil partner may not rely upon adultery to prove that the civil partnership has broken down irretrievably. The procedure is similar to that for divorce.

As with marriage, civil partnerships can be annulled. It is also possible to obtain a ‘separation order’, which is the equivalent of judicial separation between spouses.

When a civil partnership is terminated, the court can make the same financial orders as it can when a marriage is terminated. The factors that the court takes into account when deciding what orders to make are similar, and the procedure is much the same.

Since March 2014 it has also been possible for same-sex couples to get married.

A same-sex marriage can be dissolved in the same way as an opposite-sex marriage. However, it should be noted that only conduct between the respondent to the divorce and a person of the opposite sex may constitute adultery for the purposes of divorce. Accordingly, if the respondent had sex with someone of the same sex that would not be adultery, although it would be unreasonable behaviour.

The court can make the same financial orders on the dissolution of a same-sex marriage as it can on the dissolution of an opposite-sex marriage.

For further advice contact Family Law Café by clicking the Contact link above and filling in the form, or by calling us on 020 3904 0506.

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Most family disputes on divorce or relationship breakdown, such as disputes relating to finances or arrangements for children, are resolved out of court. In fact, contested court proceedings should be used only as a last resort, if you are unable to resolve the dispute by agreement.

Most agreements are reached either between the parties direct, or more commonly in negotiations between their lawyers.

If it is not possible to agree matters direct or between lawyers then there are three main other possibilities to consider before issuing court proceedings (or even after proceedings have begun). These ways of resolving disputes are often referred to as ‘Alternative Dispute Resolution’. They are:

⋅ Mediation – Whereby an independent trained mediator will help the parties try to reach an agreement. Mediation will normally involve several ‘round the table’ meetings between the couple and the mediator. If the parties are able to reach an agreement then the mediator will prepare a document setting out the terms of the agreement, and send copies to the parties. If, on the other hand, the mediator does not believe that there is any possibility of an agreement being reached, then they will bring the mediation to an end. Note that any agreement reached in mediation is not binding – the parties are entitled to take legal advice upon the terms of the agreement before it is finalised, for example by a court order. Note also that mediation is completely voluntary, and not all cases are suitable, for example, most cases where there has been domestic violence. There is a fee for mediation, although legal aid is available, subject to eligibility. Since April 2014 it has been compulsory to attend a Mediation Information and Assessment Meeting (‘MIAM’), at which it is assessed whether the case is suitable for mediation, before taking a family dispute to court.

⋅ Collaborative Law – Collaborative law requires each party to instruct a specialist collaborative family lawyer, i.e. a lawyer who has undergone special training to do collaborative work. Once this has been done, the parties and the lawyers sign an agreement to work together as a team to resolve issues without going to court. If either party should then start court proceedings, the collaborative process will end and the collaborative lawyers will cease to act for either party. Once the agreement has been signed, the parties and their lawyers will then attend four-way ‘face to face’ meetings, at which they will endeavour to reach a settlement. If a settlement can be reached, the lawyers will draw up an agreed document that is then submitted to the court, for approval.

⋅ Arbitration – Whereby the parties agree that their case will be decided by a trained arbitrator (the parties can also have their own legal advisers). The decision of the arbitrator will be legally binding, and may be made into a court order. The arbitrator will charge a fee, which will normally be shared between the parties. Advantages to arbitration over court proceedings include that the process is usually much quicker, that it is usually cheaper and that it is confidential.

If you would like any further information about Alternative Dispute Resolution Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

There are a number of possible financial orders that the court can make on divorce. The most common types of orders are the following:

⋅ Maintenance orders, also called ‘periodical payments’ orders, requiring one spouse to pay maintenance to the other spouse. The maintenance may be for a fixed time, or until the receiving spouse should remarry.

⋅ Lump sum orders, requiring one spouse to pay a lump sum of money to the other spouse. The order will state by when the money should be paid.

⋅ Property adjustment orders, adjusting the ownership of property, for example transferring the former matrimonial home from the joint names of both parties into the sole name of one of the parties.

⋅ Orders for sale of property, for example ordering that the former matrimonial home should be sold. The court will also order what should happen to the net proceeds of sale of the property.

⋅ Pension sharing orders, ordering that all or part of one party’s pension should be transferred into a pension in the other party’s name.

Note that the court can also make a child maintenance order, where the maintenance is agreed. If the maintenance is not agreed then the parent with care of the children will have to make a child support maintenance application to the Child Maintenance Service.

If you would like any further advice about financial orders on divorce, or about what orders may be appropriate in your case, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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Business assets are taken into account by the court when considering financial arrangements on divorce, so it can be a great cause of concern to the business-owning spouse what will happen to the business.

The first thing to say is that the court will, if possible, leave the business in the hands of the business-owning spouse, compensating the other spouse by giving them a greater share of other assets, if appropriate. The court will also not want to divide the business, if this means that the business is damaged such that it is no longer viable.

On the other hand it may be that some of the business assets can be safely realised in order to pay a lump sum to the other spouse. Another possibility is that the business can be used to raise funds to pay the other spouse.

Whatever, if you have an interest in a business you will have to declare it to the court before the court decides upon the financial settlement. This means disclosing recent accounts for the business, together with such other information and documentation that the court may require.

It will also be necessary to ascertain the value of the business. This may involve obtaining the opinion of an expert, such as an accountant. If the valuation cannot be agreed with the other party then the court will decide how much it is worth, on the basis of the evidence before it.

Obviously, sorting out what should happen regarding business assets on divorce can be a complex area, and if you would like further advice then Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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If you are contemplating, or involved in, divorce proceedings you will want to know the basic law governing them.

The first point to note is that divorce proceedings cannot be commenced until the expiration of the period of one year from the date of the marriage.

There is only one ground for divorce – that the marriage has irretrievably broken down. However, the petitioner (the party issuing the divorce proceedings) must show such breakdown by proving one of the following:

⋅ That the respondent (the other party) has committed adultery and the petitioner finds it intolerable to live with the respondent; or

⋅ That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or

⋅ That the respondent has deserted the petitioner for a continuous period of two years or more; or

⋅ That the petitioner and the respondent have lived apart for a continuous period of at least two years and the respondent consents to the divorce; or

⋅ That the petitioner and the respondent have lived apart for a continuous period of at least five years.

The procedure is that the petitioner will issue their petition with the court, alleging one of the above facts. The court will then send a copy of the petition to the respondent, together with an acknowledgement form for them to complete and return to the court stating, amongst other things, whether they intend to defend the divorce. Assuming they do not (defended divorce is extremely rare), the petitioner can then apply for the divorce to proceed. If it is satisfied that the petitioner is entitled to the divorce, the court will fix a date for the pronouncement of the decree nisi. Six weeks after the decree nisi has been pronounced the petitioner may apply for the decree absolute, finalising the divorce.

If you require further information regarding divorce, or advice as to how the above may apply in your case, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: Royal Courts of Justice, London – November, 2012, by Dan Perry, licensed under CC BY 2.0.