Family Law FAQs

If you are married, you will need to register what is known as your “home rights” in the property which in turn will give you rights of occupation to remain living there pending a divorce and financial settlement.

If you are not married, so in a cohabiting relationship with the legal owner, you do not have any rights to the property unless you have children together. In that case, you may be able to issue court proceedings to enable you and the children to remain in the property, or have it transferred into your name, until the children attain the age of eighteen years or complete their full-time secondary education. Thereafter, the property will revert back to your ex-partner and you will have to vacate it.

However, if you have made financial contributions to the property even if it is not in your name, then you may have what is known as a “beneficial interest” in the property. When the property is sold you will get a respective share of the net proceeds. It is always sensible to properly record your contribution in a document called a “declaration of trust”.

Spousal maintenance is when it is legally ruled that financial support must be provided by one spouse to another on the breakdown of their marriage. It is different to child maintenance, and it cannot be sought by unmarried couples. There is no set formula for the calculation of spousal maintenance. Instead, there are several factors to consider to determine how much and for how long spousal maintenance should be paid:

• Length of marriage
• Whether each party is working
• The age of the parties
• Who is looking after any children of the marriage
• Whether both parties can manage financially without spousal maintenance.

Generally, if you conclude that there is a shortfall between what the lower-earning spouse needs and their current income, which the higher-earning spouse can reasonably afford to meet, then you may decide to agree spousal maintenance on this basis, at least in the short term. However, if the lower-earning spouse can cover the shortfall themselves by increasing their income and/or reducing their outgoings in the immediate future, you may decide that spousal maintenance is not required.

If the lower-earning spouse is able to increase their income and/or reduce their outgoings in the future but needs a period of time to make appropriate financial adjustments, you may wish to limit the length of time (term of months or years) of spousal maintenance and/or reduce the amount paid in stages.

The most obvious way would be for there to be provision made in your former spouse’s Will.

However, upon divorce it is unlikely that your former spouse will have made this provision for you. Also, a Will can be changed without your knowledge so relying on a Will is not ideal. You can take out life assurance on your ex-spouse’s life, normally in the form of a Family Income Benefit policy, which would protect your maintenance on death.

There are also critical illness and life insurance policies on the paying spouse’s life which may be available, as well as specific maintenance protection plans.

In Family Law, there is no time limit to bring a claim for financial settlement after divorce, provided you have not remarried. Consequently, this could leave a party exposed to a financial claim being brought against them many years after the divorce proceedings have been completed.

It is possible to terminate any financial claims by submitting an agreement to the Court for a global financial settlement which can include a clean break clause dismissing all financial claims.

Unlike child maintenance, there is no set formula for deciding what amounts to a fair financial settlement. The court will consider all of the circumstances of the case, taking into account a set of statutory criteria under section 25 of the Matrimonial Causes Act 1973. The court calculates and then distributes the parties’ assets between them to achieve a fair outcome. The courts’ first consideration is given to the welfare of any children of the family under the age of 18.

In summary the section 25 factors are:

1. The capital and income resources available to the parties, either existing or reasonably foreseeable.
2. Details of the financial needs of the parties, taking into account:
• their standard of living;
• their ages and the length of the marriage; and
• any disabilities.
3. The court also considers the following additional factors:
• the respective contributions of each party to the marriage;
• the conduct of each party (although only in exceptional cases); and
• any benefit either party will lose as a result of the divorce (such as a spouse’s pension).

However, each case is looked at individually and on its own facts.

The Court has a very wide discretion when deciding financial settlement cases, to consider the criteria under section 25 of the Matrimonial Causes Act 1973 and to decide matters based on what it considers to be fair.

Whilst there is a starting point that assets should be divided equally, this can be departed from on the basis of need e.g. a party would not be able to rehouse unless they receive more than 50% of the assets.

They encourage both parties to become financially independent as soon as possible, but sometimes this is not possible and spousal maintenance has to be paid into the future.

The grounds used to base a divorce petition will not normally have any effect on the financial settlement. In very rare and exceptional cases conduct can be taken into account, but it has to be exceptional and there is a very high bar to cross for it to be relevant.