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3 Divorce and Separation

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1. Introduction

2. Where to start

3. Separation

4. Divorce

5. If you have children

6. Supporting your children

7. Money and property

The court has wide and flexible powers to make orders in divorce proceedings. It is only possible to give general information in this leaflet because each family is different. You should certainly take legal advice about your situation.

What orders can the court make in divorce proceedings?
The court can make orders for:

  • maintenance (regular payments) for your partner;
  • maintenance for your children but only in some circumstances - see 'Supporting your children');
  • a lump sum for your partner (and for the children, if necessary);
  • a 'property adjustment' or 'transfer of property' order (such as putting the house in one person's name, or selling it); and
  • giving you or your partner a share or claim on the other's pension fund. This could involve having a share of the fund now so that you get a pension fund of your own, or having a payment out of it once your partner is drawing their pension.

How can I get a court order?
After divorce proceedings have been filed, either you or your partner can file a form at the court saying that you want to put in a financial application. Both of you will then have to fill in a long form (‘Form E’) with all your financial details. You have to exchange these with each other at the same time. The court will fix an appointment to check that all the evidence has been filed, and there will be a session at court to see if you can reach an agreement.

Forms and information leaflets are available from the Court Service website (See 'Further help' for details).

Does our home have to be sold?
Not necessarily. There are several different ways of dealing with the home. For example, you can:

  • change the shares you both hold in it;
  • agree to delay selling it until some point in the future;
  • decide how the money from selling it can be divided; or
  • decide who will pay the mortgage.

If you cannot agree on any of these things, the judge will make an order.

How are the money issues worked out?
The court doesn’t use a formula to work out maintenance and other money issues, but it does take account of various things.

These are:

  • the income, earning capacity, property and other financial resources you each have (or would probably have);
  • the needs and financial responsibilities you each have (or would probably have);
  • the standard of living you enjoyed as a family;
  • your ages, any physical or mental disabilities, and the length of your marriage;
  • the contributions that each of you has made or is likely to make to the welfare of the family (which includes looking after the home or caring for the family);
  • your behaviour to each other, if the court thinks it would be unfair to ignore it (though in practice behaviour is rarely taken into account); and
  • any benefits, such as pensions, that you might lose because of the divorce.

A maintenance order can last for a fixed period or for as long as both of you are alive, and is on condition that the person it is paid to does not marry again.

Can an order be changed after it is made?
Either of you can apply to the court to alter a maintenance order if your situation changes. However, orders for lump sums or transfers of property cannot normally be altered once they are made. This applies to orders made by agreement as well as those decided by the judge, so it is important to make sure that you have thought about all the things that might happen in the future before you commit yourself to an agreement.

What should I do if I find that my partner is getting rid of property to stop me getting it in divorce proceedings?
Tell your solicitor urgently, because you can apply to a court for an order to stop the sale, and also get things back if they have already been sold. You have to prove that the sale is going to happen or has happened and that it will affect a final financial settlement.

The court can freeze all your partner’s assets to protect your interests.

8. Making arrangements should you die

9. Dealing with emergencies

10. Terms used in divorce and family law

11. Further Help

12. About this leaflet

This leaflet is published by the Gurkha Free Legal Advice (LSC). It was written in association with Imogen Clout, a solicitor and mediator specialising in family law.

Leaflet version: May 2009

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