Decision by the courts
How the court decides on how the finances will be split in a divorce:
If you cannot agree, a judge will decide how assets will be split. They’ll base their decision on how long you’ve been married or in a civil partnership, as well as your:
- age
- ability to earn
- property and money
- living expenses
- standard of living
- financial needs and responsibilities
- role in looking after the family, for example if you were the main earner or caring for the family or home
- disability or health condition, if you have any
The judge will decide on the fairest way to divide the assets if there’s enough to meet everyone’s needs. They will make arrangements for any children first – especially their housing arrangements and child maintenance. The reason for the divorce or dissolution is not taken into account.
The judge will usually try to arrange a ‘clean break’, so everything is shared out, and you no longer have any financial ties to one another.
What can the Court Order?
A very worded Matrimonial Causes Act 1973
In simple terms:
In divorce disputes the court have a very wide remit to take action to distribute assets and income between a divorcing couple in order to achieve fairness.
The Court can only make orders provided for in the Matrimonial Causes Act 1973. Other matters can be agreed but will usually have to appear in a separate part of the order known as the “Recitals” or one party may give a formal undertaking to do or not do certain things.
The Matrimonial Causes Act (Section 25) allows for some of the following orders to be made:
- section 23 (1)(a) – Periodical payments (typically monthly payments for child or spousal maintenance)
- section 23 (1)(b) – Secured periodical payments (maintenance secured on a particular property or asset – we don’t often come across it)
- section 23 (1)(c) – Lump sum order (a lump sum of money – for example to buy someone out of their share on a property)
- section 24 – Transfer of property order (the most common example is the transfer of the matrimonial home from the joint names of the parties into the name of only one of them)
- section 24A – Sale of property order
- section 24B – Pension Sharing Order
- section 25 C -Pensions: lump sums.
If there is a dispute about Child maintenance, the issue normally has to be referred to the Child Maintenance agency. Child maintenance can only be dealt with by a Court in certain circumstances:
- Where the parties are in agreement and the receiving party is not on income support;
- Where a child maintenance order has previously been made by the Court and there is an application to vary the amount;
- Where there is an application for payment of school fees;
- If either parent lives abroad
It follows that while Court orders do often include child maintenance, in most cases this will be where the parties have managed to negotiate an agreement as to figures payable.
Money & Property when you divorce or separate – get the court to decide
Scared? Of course you will be – you do not have a crystal ball to see your future but you will damn well work hard and put in the leg work necessary to ensure that you get the best and a fair deal – either via mediation or through the lawyer.
Stressed? It is said – and I went through it – that this is one of the single most stressful event – after bereavement- but just remember that only YOU can help yourself the most by trying to be sane and staying mentally healthy. Of course it will also depend whether the divorcing partner is willing to settle amicably or will be an idiot and be acrimonious, typically a narcissistic trait, given that the judge – If you go the court route, will base the decision from 50/50 split and then may consider various other factors.
Keep asking “what if” questions and seek answers. Assume the worst and fight for the best possible solution for you without being unfair.
Some common divorce terms (see a separate page/tab for full glossary)Petitioner (Applicant)- The one who files for divorce first is called a Petitioner while the other party is known as the Respondent. The advantage of being a petitioner is that you set the process of the divorce. The respondent has to respond to the petitioner’s claims. If the matter should go to a hearing, the person who files the petition usually presents his or her case first. I believe being a Petitioner stops the respondent to cause delays to the divorce in the initial stages. The person applying for the divorce (Petitioner) will be responsible for covering the court fee and any other costs incurred during the process.
The Response
Once the Petition has been lodged, the court will send a copy to your divorcing partner, who is now known as the Respondent, alongside an Acknowledgement of Service form which they should complete and send back to the court to allow the divorce to proceed. The Respondent is required to return this within 7 days and their response should indicate whether they wish to defend the divorce proceedings, whether they agree to the reasons for divorce and their position with regards to who they believe should bear the divorce costs.
If your divorcing partner doesn’t respond to divorce papers you could use Personal service by court bailiff or process server. Personal Service is an option, if your spouse has not returned their Acknowledgment of Service to the Court within 14 days and you have a reasonable belief that they are still living at the address set out in the petition. This can be arranged by a Court Bailiff (if you do not have legal representation) or a Process Server (if you have a solicitor acting for you) to physically serve the documents on your spouse at their address or an alternative address, like their work address. The server can make several attempts, if necessary, to serve your spouse with the divorce papers. Once your spouse has been served, the process server or court bailiff will file a certificate of service to confirm their successful service. If the Court is satisfied that your spouse has been correctly served and is aware of the proceedings, it is then possible to go on to the next stage and apply for the Decree Nisi without requiring your spouse to complete their Acknowledgment of Service.
It is very rare that divorce proceedings are defended, given it is costly to do so, and will have little impact on the end result.
In cases where the Respondent refuses to return the Acknowledgement of Service form, the Petitioner can arrange for a process server to personally serve the Petition on the Respondent. The process server will charge a fee for this and will provide a statement of service which can be used in lieu of the signed Acknowledgement of Service to progress the divorce.
Reason for divorce – (rule changed in April 2019 )
Despite having suffered domestic abuse, I was not able to cite that as an unreasonable behavior for an irretrievable breakdown of the marriage because my ex would not agree to a divorce if I cited physical abuse as a reason for the breakdown of the marriage. Since I think 2019, the new divorce laws has removed the need for evidence of adultery, desertion or unreasonable behavior and is expected to be implemented in 2022.
Filing for a divorce in UK: Fill in a divorce application form D8 (‘divorce petition’) to start a divorce. You can get help to complete the form at a Citizens Advice Bureau (CAB).
Everything in the matrimonial pot will have to be shared. So whether the divorcing partner got the bonus from his employers or any lump sum settled by the employers for any ill health caused or any inherited investments from his parents/grandparents, will all have to be declared and shared.
If you were not controlling the finances then you may have to go back on memory lane to remember things that were mentioned about the finances and make sure to declare them so that the solicitor can investigate and ask relevant questions to the divorcing partner. Of course, if they are acrimonious they will make every attempt not to declare the full assets list..
