We asked LA Law which factors affect divorce settlements…
The court’s powers
Once a divorce petition is lodged,and at any time after the decree nisi, the court can order one party to make financial provision for the other (including interim provision).
The court can make one or more of the following orders:
- An order that one party makes periodical payments to the other.
- An order that one party pays a lump sum to the other, either on a specified date or by specified instalments.
- A property adjustment order – this is an order that one party transfers property to another. Such an order is often made in relation to the marital home. For example, there may be an order that the home be transferred from the joint names of both parties to one party’s sole name. In such cases, provision can be made for one party to take over liability for the mortgage. Likewise, a property adjustment order can be made to transfer investments, policies and other property, including tenancies.
- An order that one party pay a lump sum or transfer property to the other for the benefit of the children of the family. This can include step-children.
- Pensions sharing and attachment orders
Following the Child Support Act 1991, child maintenance is now largely dealt with by the Child Maintenance Group, and the court’s powers to order periodical payments for a child are limited.
When deciding whether to make any order for financial provision, the court will consider all the circumstances, particularly the welfare of any children. The court will take into account the following:
- The income and earning capacity of both parties.
- Their financial needs, obligations and responsibilities.
- The standard of living of the family before the breakdown of the marriage.
- The ages of the parties and the length of the marriage.
- Any physical or mental disability of either party.
- Each party’s contribution to the welfare of the family (including any contribution by looking after the home or caring for the family).
- The value of any benefit which either party will lose because of the divorce (e.g. a pension).
- In exceptional circumstances, the conduct of the parties will also be taken into account.
Fundamentally the court’s discretion is wide and therefore the outcome of the judicial process can be difficult to predict with certainty. This can be seen as a disadvantage. On the upside the outcomes are bespoke to the particular set of circumstances of the family in question. It is important to ensure that specialist legal advice is sought at the earliest opportunity.