Orders

Orders

Contents

Child-related orders

If you cannot agree the arrangements for your children (e.g. where they will stay or how often they will see the other parent), then you may need to seek court orders.

These orders can be made up of 3 different types:

Residence order

This decides where the child will live. This doesn't mean that the non-resident parent has no say in major decisions about the child. It simply decides where the child's principal residence will be. It is sometimes possible for a joint residence order to be made, where the parents have shared care of the children.

Contact order

If there is no agreement between you about when the child will see the non-resident parent, you can apply for a contact order. This asks the court to allow you to see your children on particular days and times. The court will consider all the relevant facts and decide what is in the child's best interest. The court may make the contact subject to certain conditions, for example, that contact is:

  • not to include an overnight stay;
  • is to take place at a contact centre; or
  • supervised by a family friend.

Specific issue order

If there is a particular concern about something, it's possible to ask the court for an order relating to that matter. A specific issue order can be about any particular issue in relation to the child. This could, for example, be:

  • to change the name by which the child is known;
  • whether the child should receive particular medical treatment; or
  • whether the child should go to a particular school.

The courts are not meant to make orders about the children unless they are satisfied that it is better to make an order than not make an order. This means the courts will not grant an order if it is unopposed, on the basis that there is no need for an order. The courts will not 'rubber stamp' arrangements that parents have for their children, as they feel that it is better for these to be a matter of agreement between the parents rather than a court order. If an agreement cannot be reached then the courts are there to make a decision, if needed.

Financial orders

Seeking a financial order

If you want a financial order against your spouse then you need to do this during the divorce or dissolution procedure. Once a divorce or dissolution is finalized, it is generally no longer possible to make any orders.

As a result, you need to try and agree matters beforehand and then enter into a separation agreement, regulating financial matters, before you start the divorce or dissolution. If you cannot reach an agreement, you need to ask the court to make the financial orders you are seeking during the divorce or dissolution process. If your spouse or civil partner raises the action and serves an Initial Writ on you, you will be given an opportunity in the Defences to ask for financial orders against them.

The court can make all sorts of financial orders. They can order the sale of the house. They can transfer a house from one party to the other. They can order the sale of the house but delay it until sometime in the future, for example until the children have finished school. They can transfer insurance policies. They can order maintenance to be paid by one party to the other, before the divorce or dissolution is finally decided. In certain situations they may make a maintenance award after divorce or dissolution, although this is quite rare.

The court can make an order of a capital sum to be paid, either immediately or by installments, over a period of time or delayed until a specific event happens. The Court can order a pension to be split between 2 spouses/civil partners.

What the court considers when making financial orders

The court's approach is to aim for a 'clean break' on divorce. The emphasis is on the division of the assets or 'matrimonial property', which has accrued from the date of marriage or civil partnership to the date of separation (not the date of divorce/dissolution). This matrimonial property is divided fairly between the parties and then the parties move on with their lives with no continuing financial obligations, except in certain circumstances.

The date of separation

The first thing to agree on is usually the date of separation. This is the date that the parties stopped living together as a couple. This is not necessarily the date that they stopped physically living together, because it's possible for people to stop living together as a couple but continue to live under the same roof. It is an important date for working out the value of the property to be divided and can often be argued over, particularly if the parties were in a relationship that broke down over a long period of time.

What is matrimonial property

The next stage is to work out what 'matrimonial property' the parties have. Matrimonial property is basically all the property that the parties have built up from the date of marriage to the date of separation. It doesn't matter whether the property is in the name of one party, or in joint names, it is all classed as matrimonial property.

By definition any property that either party had before the marriage or civil partnership is not classed as matrimonial property and doesn't fall into the pool. But there are 2 exceptions to this rule:

  • If a house is bought in one party's name before the marriage or civil partnership, but with the intention of it being the family home (not necessarily with marriage or civil partnership in mind), it is still classed as matrimonial property.
  • Gifts or inheritances received from a third party, during the course of the marriage or civil partnership, are not classed as matrimonial property. To be excluded, such gifts or inheritances must still be in the same form as they were received in. For example a valuable painting, worth £10,000 is received from Uncle John when he dies. If the painting had not been converted into money or some other asset, by the time the parties separated, then it is not matrimonial property. But if Uncle John leaves £10,000 in his will and that money is then used to buy a painting, the painting will be regarded as matrimonial property, because that is not what was gifted to the recipient in the first place.

Valuing matrimonial property

You have to give details all the assets that are classed as 'matrimonial property'. It is usually helpful to make 3 columns:

  • One for assets in the one party's name
  • One for assets in the other party's name
  • One for assets in joint names

The same goes for liabilities. Any liabilities incurred during the course of the marriage or civil partnership, if they are for matrimonial purposes, are considered matrimonial liabilities even if they are in one party's name.

The next stage is to try and put a value on these assets and liabilities. This is sometimes straightforward: money, bank accounts, etc. It may also be very complicated: interest in businesses or houses that are not going to be sold. Arguments often come up about the value of assets and liabilities. It is not usually a black-and-white situation.

Dividing the matrimonial assets and liabilities

The matrimonial assets and liabilities then have to be fairly divided between the parties. The starting point is that 'fair' means 'equal'. In most cases, separating spouses/civil partners simply agree to divide things equally between them. It is important to note though that there is nothing in law to say that parties are entitled to an equal share. The law says that parties are entitled to a fair share, which might be equal, but it doesn't have to be.

The courts can consider special circumstances put forward by either party for an unequal division of matrimonial assets, or one specific asset.

There are various special circumstances for seeking an unequal division, such as:

  • economic advantages and disadvantages resulting from contributions, financial or otherwise, made by the other party; or
  • special circumstances relating to the economic burden of caring for a child of the marriage under the age of 16, which should be shared fairly between the parties (which might mean more money for one party towards a family home for the children); or
  • if one party has been largely dependent on the financial support of the other, they should be awarded reasonable amounts to help them adjust over a period of no more than 3 years from the date of decree; or
  • if one party is likely to suffer serious financial hardship, they should be awarded reasonable amounts to relieve them of that hardship over a reasonable period as a general safety net.

Generally, behaviour is not taken into account in the division of matrimonial assets unless,

  • the conduct has adversely affected the financial resources of the parties; or
  • it would be clearly unfair to leave it out when considering the dependency of one party on the other or the issue of one party suffering serious financial hardship as a result of the divorce/dissolution.

The court also has to consider whether the suggested division is reasonable in view of the resources, both present and foreseeable, that the parties have. If a party has assets that have shrunk, the court has to consider whether the orders they are making are reasonable, given what resources are available to that party at that time.

These rules provide a framework within which the court should operate, but it is not a rigid formula. It is very difficult to predict the financial order a court will make as it has a wide discretion to decide what division of matrimonial assets are fair. Usually it is also difficult to appeal any decisions the court makes, unless there is a significant error of law.

This is a brief overview of the general rules that apply to the division of matrimonial property. Every case is unique and has its own set of circumstances and so outcomes can differ widely.