The Matrimonial Causes Act allows the following orders to be made
- section 23 (1)(a) - Periodical payments (typically monthly payments for child or spousal maintenance)
- section 23 (1)(b) - Secured periodical payments (maintenance secured on a particular property or asset - we don't often come across it)
- section 23 (1)(c) - Lump sum order (a lump sum of money - for example to buy someone out of their share on a property)
- section 24 - Transfer of property order (the most common example is the transfer of the matrimonial home from the joint names of the parties into the name of only one of them)
- section 24A - Sale of property order
- section 25A - Pension Sharing (i.e. an order which splits off part of a pension and allows for it to be invested separately to provide a pension for the other spouse)
- section 25 B - Pension Attachment (i.e an order which requires the pension provider to pay out part of the pension lump sum receivable on retirement and/or the ongoing pension, to be paid to the spouse instead of to the pension scheme member)
- section 25C - Pension Attachment of Death Benefits
Step 1 - Consider Mediation
Mediation is generally accepted as a more cost effective way of resolving disputes than going to court. Because of this the courts now require that you at least find out about mediation and consider mediation before you can apply to court for a Financial Order.
So you cannot apply to court for a Financial Order unless you have a completed and signed FM1 A FORM from a mediator to say that you have attended a miam The form will detail why you or the mediator feel that mediation is not suitable in your case.
Step 2 - Apply to court
An application form A for Ancillary Relief can be issued by either party to a divorce. There is a simple form to complete and Court fee to pay. The Court issues the application; automatically makes an order for documents to be prepared by both sides; lists the matter for a First Appointment in 12 to 16 weeks time; and sends copies of all the paperwork to the Respondent to the application within 5 days. If there is an application for a transfer of property order or for pension provision, the Applicant also has to arrange service on any Building Society or Pension Provider.
Step 3 - Financial Disclosure on Form E
A lengthy and comprehensive explanation of your financial situation which has to be completed in detail and sworn in front of a solicitor who is not involved in the case. Certain documents have to be attached such as payslips, a valuation of the matrimonial home, 12 months bank statements, credit card statements, detailed information about any pensions including any SERPS or additional state pension entitlement and any other documents which help to make sense of what you set out in the form E itself. Form E is required 3 weeks before the First Appointment so you usually have at least 9 weeks in which to get it ready.
Enforce a Court Order for spousal maintenance will have various options. The Court has a wide range of powers, for example, the Judge can make an attachment to earnings Order, charging Order, third-party debt Order (for example requiring a bank to make a payment from H’s account to the W’s bank account) or other Order to assist the W with enforcement and ensuring payment is made.
You can apply to enforce the Order generally using Form D50K and the Court will then make an Order to enforce as they consider appropriate. It is possible, in this scenario, for H to cross-apply to vary the spousal maintenance Order downwards or to apply for the Order to cease due to a change in circumstances of either party. It is only possible for W to enforce maintenance arrears that are less than 12 months old without leave of the Court.
If you are an individual paying spousal maintenance pursuant to a Court Order and consider a change in your circumstances or your ex-spouse’s circumstances may enable you to vary the Order or apply to bring it to an end, or if you are a recipient party and are not receiving spousal maintenance pursuant to a Court Order.