When a Divorce Petition is presented to the Court following the irretrievable break down of the marriage, the Petition will include a section referred to as the 'prayer'.
This part of the Petition specifically deals with 3 points. The first is asking the Court to dissolve the marriage. The second is asking the Court to deal with any cost orders arising from the Divorce (generally only relevant in adultery and behaviour divorces). The final point relates to financial provision. It is the inclusion of this part of the prayer within the Petition which provides either party with the right to ask the Court to deal with any financial matters arising from the breakdown of the marriage.
Pursuant to Section 23 of the Matrimonial Causes Act 1973 the Court may, upon the granting of a Decree of Divorce, make the Financial Orders:
Whenever the Court are asked to consider making an Order for Financial Provision they must have regard to Section 25 of the Matrimonial Causes Act 1973. This part of the Act provides the Court with a 'checklist' which must be considered in every case.
The Court’s first consideration is always given to the welfare of any minor children. The Court will then consider 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, including any potential increase in earning capacity
- the financial needs, obligations and responsibilities of both parties
- the standard of living enjoyed by the parties within the marriage
- the age of each party and the duration of the marriage
- any physical or mental disability of either party
- any contributions which either party has made to the marriage, or is likely to make
- the conduct (behaviour) of each party (if it considered that to disregard the conduct would be inequitable (unfair)
- the value to each party of any benefit which, upon dissolution of the marriage, that party will lose the chance of acquiring
Each party has a duty to the Court and each other to make full and frank financial disclosure. This means revealing all financial information/assets whether the other party is aware of them or not.
Where an agreement has been reached in respect of Financial Matters
If an agreement can be reached between the parties regarding the financial arrangements then it is possible for this agreement to be recorded into a 'Consent Order'. This document will reflect the agreement reached and will be signed by both parties. This document may be sent to the Court anytime after the granting of the Decree Nisi and would be placed before the Judge for their approval. If the Judge is satisfied with the terms of the Order then this will be sealed and will become a legally binding document. This course of action generally means that there is no need for either party to attend Court unless this is specifically requested by the Judge.
Where an agreement cannot be reached in respect of Financial Matters
If an agreement cannot be reached then an Application for Financial Provision can be issued with the Court. This Application can be sent to the Court at any time within the Divorce Proceedings (providing the Petition has been issued). Either party to the proceedings can issue the Financial Application.
Once the Financial Application has been issued by the Court both parties will be directed to file and serve a Form E (Financial Statement). This document provides a clear picture of each party’s assets, liabilities, income and expenditure. Both parties will have the right to raise questions on the disclosure provided by the other party.
An appointment will be listed before the Judge approximately three months after the Application for Financial Provision has been issued. You will be notified of this Hearing date and will be required to attend this Hearing. This Hearing is referred to as a 'First Directions Appointment' or FDA. The Judge will consider the documents filed to date and will give consideration to any further documents/ information which may be required and make Directions accordingly. This may, for example, include directions for the joint valuation of the matrimonial home, the filing of medical evidence etc.
The next Hearing which will generally take place is a 'Financial Dispute Resolution Appointment' or FDR. At this Hearing, every effort will be made to try and settle the proceedings. Negotiations will take place, with all parties and their representatives arriving at Court one hour before the designated hearing time. A District Judge will be available to assist the parties and their legal representatives with the negotiation. The District Judge may possibly give an indication to the parties of the sort of outcome that can be expected if the case proceeds to a Final Hearing. If agreement cannot be reached then the case will be set down for a Final Hearing. This will mean a further Court Hearing at which the District Judge will consider all of the evidence in the case including the parties oral evidence.
Most people wrongly believe that a Decree absolute ends all financial ties between spouses. This is not the case. If there is no financial order in place then it is open to either party to bring a financial claim in the future.