Sorting Out Finances
FINANCES
The Options
- Agreed arrangements, which can be informal, or formalised in a separation agreement or
- In the absence of agreements, remedies for you (a divorce court order) and your children (a CSA assessment) sometimes linked to (a Children Act order).
INFORMAL AGREED ARRANGEMENTS
Many couples manage to separate and to agree who will pay for what, including the maintenance for any children. If you can agree between you, you do not need to have a formal agreement or an order. However you should be aware that there is no way of formally enforcing the payments if the payer proves unreliable.
FORMAL SEPARATION AGREEMENTS OR POST NUPTUAL/ CP AGREEMENT
Separation agreements are sometimes referred to as ‘deeds’ Technically a legal document is a deed if it is made ‘under seal’. Your Signatures must be formally witnessed.
The document should generally be drawn up as a deed if property (houses and land) is being transferred between you, or if it contains a financial obligation that you might later want to enforce.
To ensure that a separation agreement does not have effective legal force it should be made only once you are both sure that you know all about each other’s financial position: what you earn, you own and you owe.
We can draft this agreement for a competitive fixed fee.
Separation agreements typically cover the following issues:
- That you have decided you want to live separately, and the date on which the separation started (this date is useful for tax purposes and also for later evidence to the court of the period of your separation).
- Agreements about where and with which parent the children will make their main home. You can also deal with contact arrangements if you want them fixed or simply express a joint intention that contact will be frequent, and state whether or not the children will stay overnight.
- Who is going to pay for what in the future.
- Maintenance for the children.
- (For married/cp couples) maintenance from one spouse/cp to the other.
- Division of contents of the family home.
- Ownership of other assets such as the car.
- Pre-nuptial agreements.
If you are married/cp the agreement can also contain an expression of your intention about whether there will eventually be divorce proceedings.
Transfers of property or large assets at this stage may have implications for Capital Gains Tax. All the financial arrangements may be considered by the courts (in later divorce proceedings for instance). You need to take legal advice as to whether you are making a commitment that you will later want removed and whether a court would do so.
Most people would like to think that the separation agreement would remove the possibility of any later legal argument in court. But, if you are married/cp the court will not let its powers of making orders be removed. You cannot make a binding promise that you will never invoke the power of the court at a later stage. However, the courts will be inclined to uphold an agreement that both parties have made if they both had legal advice at the time that they made it and the financial disclosure on both sides had been full and frank.
THE PRINCIPAL REGISTRY AND THE COUNTY COURT
You start a financial claim with form A which we can draft for you for a competitive fixed fee.
The factors the court must take in to account in making an order.
- The welfare of any child of the family.
- Your incomes and earning capacities
- Your obligations and responsibilities.
- Your ages.
- Any physical and mental disabilities.
- The duration of the marriage.
- The previous standard of living.
- The contribution that each of you has made to the family.
- If it would be unfair to disregard it, the conduct of either party.
- Any pre or post nuptial agreement
CHILD SUPPORT AGENCY
Once you have separated, to the point where your spouse/cp is not living in the same household as the children, the CSA has jurisdiction and you can apply to it for maintenance.
CHILDREN ACT APPLICATION
You can apply under the Children Act 1989 for financial orders for the children of the family at any time. If you think that you are going to be filing divorce proceedings reasonably soon, within a year say, then it is probably not a good idea to start Children Act proceedings as it will simply duplicate the financial proceedings under the divorce and add to the cost.
FINANCIAL APPLICATIONS AND DOMESTIC ABUSE
If you need to get an injunction to protect yourself from abuse it is possible to ask the court to make an order to cover payment of outgoings – like rent or mortgage payments – at the same time as it makes an occupation order. This short-circuits the previous necessity of having to make a separate application to the court for financial support to cover basic running costs for the home.
Consult the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.
