Frequently Asked Questions
Finances on divorce or dissolution of a civil partnership
Q. Will I get legal aid for my child arrangements case?
If you think that you may qualify for legal aid in your case, your should seek advice from a solicitor because legal aid is not available for work undertaken by a direct access barrister. Since 01.04.13, with just a few exceptions, that there is no legal aid for new family dispute cases. The exceptions:-
- legal aid may be available for mediation, subject to your means
- if you can show some evidence that you have been subjected to domestic abuse (such as telling your GP in the past) or there are child protection issues, you may be eligible to apply for legal aid.
Q. Do I have to go to mediation before our finances can be sorted out at court?
No. However, if you are considering issuing court proceedings there is now a requirement for you to attend a mediation information and assessment meeting alone (known as a MIAM) before proceedings can be issued in respect of finances in a divorce. (Exemptions can apply. For example, where there has been domestic violence or the nearest mediator is based further than a 15 mile radius from your home or your partner is in custody). The purpose of the MIAM is for the mediator to hear about your circumstances and to advise you about whether mediation could be suitable in your case and if so, to advise on next steps. After the MIAM any further mediation is voluntary.
Q. Will living with a new partner affect my divorce/civil partnership dissolution settlement?
It can do, because your new partners’ income may be taken into consideration to the extent that it relieves you from paying all the household bills. It may affect any spousal maintenance you had hoped to receive for yourself, however, it does not affect child maintenance. You are advised to obtain legal advice about your specific circumstances and how it may affect your case.
Q. We have agreed about our finances on divorce/civil partnership dissolution. Can we leave it at that?
You can leave it at that. However, you are strongly advised take legal advice to check that the agreement is fair. It is also advisable to have your agreement set out in a draft consent order to be approved by the court. The judge will scrutinise the draft consent order to ensure that it is fair to you both and that it meets both parties respective needs and those of the children. Once approved, it is binding on the parties. Neither party can renage on the agreement or come back for more at a later date. The Court fee for a consent order is £50. If you decide not to formalise your financial position by obtaining a consent order then you or your ex can apply to the court for a financial remedy order at any time in the future.
Q. I am now divorced/my civil partnership is dissolved but the finances are not resolved. Is it OK to remarry?
No. The law states that when either party remarries or enters into a civil partnership they will not be entitled to apply for a financial provision order or a property adjustment order. To avoid any serious issues arising, you will need to make an application for a financial remedy order before your remarriage. It is much safer to finalise your divorce financial settlement before tying the knot again. You are strongly advised to seek advice rather than fall into the ‘remarriage trap’.
Q. My father lent us £16,000 for home improvements. My ex wife is now saying that this was a gift to us. Will the court make her pay back her share?
In financial remedy proceedings both parties are required to set out their assets and liabilities in court Form E. The loan from your father can be set out by you on your liabilities schedule for the court to take it into account. Family loans are often regarded by the court as ‘soft loans’. Was a contract drawn up? Is there a regular monthly repayment arrangement? Is interest payable? Is there a final repayment date? If the loan was not formalised, the court will take this fact into account. Your father may seek to be joined in the financial remedy proceedings as an Intervenor. You are strongly advised to seek legal advice in respect of this.
Q. I found out recently that I am due to inherit a substantial sum of money from an elderly aunt who is now in poor health. Must I disclose this matter in the financial proceedings on divorce?
Yes. It is an absolute requirement that there should be full and frank disclosure by both parties in respect of all assets, all income and any future contingencies (e.g. an anticipated redundancy with a payout, a better paid job on the horizon and or an inheritance). Caselaw states that litigants must put their ‘cards on the table, face up’. If you fail to disclose any material information to the court this would be regarded as a serious matter with serious consequences including the risk having your case reopened with a new financial order being made. The costs of the second proceedings are likely to have to be paid by you.
However, the court can be invited to accept that any legacy in a will is not a vested interest because your aunt could decide to change her will. She could live longer than you anticipate, she could remarry or spend many years in care expending large sums of your anticipated legacy. Further, it is open to anybody who feels that they should have received something in her will to make a claim under the Inheritance (Family and Dependents Act) 1973. If successful, that could diminish or extinguish your expected legacy. The court will take all this into account when deciding whether your expectation should be factored in at all, when it is determining how to divide the matrimonial assets. Indeed, if as a couple you were very wealthy, it may be possible to assert that the expected legacy should be ring fenced as the existing assets are sufficient to meet both parties needs. Legal advice should be obtained when there is an anticipated inheritance and financial remedy proceedings are ongoing.
Jane is authorised to practise by the Bar Council and is regulated by the Bar Standards Board. She has a right of audience in every court in England and Wales. Jane can be contacted via the online Bar Council Public Access Portal.
Professional Memberships: Lincoln’s Inn, Affiliate member of Resolution (the largest organisation of family lawyers in the UK) and Family Law Bar Association.
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