Divorce- the misunderstandings
Divorce is always a daunting prospect. There is often the fear of the unknown and worry for the future. Generally, it is a common misconception that financial provision on divorce favours the wife. There is no starting presumption that the wife should be provided with greater financial provision than the husband, however if the wife has stalled a career to care for children, is less able to improve her position by increasing her income or has poorer pension provision than her spouse, this may result in a tipping of financial provision in the wife’s favour, either by way of a greater capital award, spousal maintenance or a pension sharing order.
Divorce- in court
In all cases, the court has a duty to consider a ‘clean break’. A clean break ends a spouses’ financial obligations to the other. In some cases, it would be unfair to impose a clean break for example where one spouse has no income or much lower earnings than the other. In these circumstances, the court can order one spouse to pay the other a regular sum of money. How much and for how long such payments are made depend on the specific facts of each marriage and an individual assessment based on the parties needs and available financial resources needed. In carrying out that exercise, need will be measured by assessing the standard of living the parties had, the longer the relationship the more important this factor will be.
The court can order a spouse to pay the spousal maintenance until either spouse dies, there is a further order of the court or until the recipient remarries. This is a “joint lives order” during the existence of which either spouse can apply to the court at any time to vary the maintenance upwards or downwards if there has been a change in circumstances. It is also possible to apply to the court for maintenance to be capitalised, which would mean the recipient would receive a lump sum in exchange for a clean break.
In some cases, maintenance payments are ordered for a set number of years and can be varied or capitalised during that term. The concept behind this is to give the other spouse time to get on their feet financially and become self-supporting. It is possible for the recipient to apply for the term to be extended but this must be done before the term expires and an extension would only be permitted in exceptional circumstances. Sometimes a bar is included which means that a “term maintenance order” cannot be extended.
Financial provision on divorce is ultimately a complex balancing act. The courts aim to achieve fairness whilst at the same time promoting financial independence.
For further information on divorce or separation, please contact Claire Porter, Associate in the Family team at SAS Daniels on 01244 305 926 or email [email protected].