Court orders – Financial

The financial arrangements on divorce are usually settled by agreement. It is important to get the court to make an order incorporating the terms of the agreement – an ‘ancillary relief order by consent’.

The purpose is to achieve certainty, because either party to a marriage can make a financial claim against the other at any time after the end of the marriage. There is no time limit for such a claim, and it is not unheard of for a claim to made many years after the end of a marriage. The only things that can prevent such a financial claim being made are if the person making the claim has remarried (although even then they may be able to proceed with a claim if it was included in the original divorce petition) or if the court has made an order creating a ‘clean break’.

Once a financial order has been made it is very unlikely indeed that the court will revisit it and consider changing the financial settlement. It is technically possible, but there has to have been a fundamental change in the underlying situation – and that has been interpreted increasingly strictly by the higher courts.

Although financial matters are sometimes settled while the parties and their legal advisers are at court for a hearing, most financial consent orders are dealt with by post. The terms of a draft order are agreed and the order is sent in to the court with a document briefly explaining the parties’ finances – a ‘statement of information for a consent order’.

The district judge looks at the draft order and at the statement of information. If (s)he is satisfied that the order is fair to both parties, (s)he will make the order as asked. The making of a financial consent order is not a rubber-stamping exercise; district judges can and sometimes do refuse to make the order.

If, after looking at the draft order and statement of information, the district judge does not feel able to make the order as asked, (s)he will let the parties’ solicitors know. Sometimes (s)he will set out the reasons in a letter; sometimes (s)he will ask the court office to arrange a short hearing at which the parties and their solicitors can provide further information and answer the district judge’s questions.

Anything that the court has the power to order after a contested hearing (maintenance, lump sum, transfer of a property, etc.) can be ordered by consent. Remember, most financial orders on divorce are made by consent.