The divorce process is typically known for being costly and so, your financial circumstances may well be your overriding concern. You may be worried about being able to afford living by yourself, will your property have to be sold, and with it the security of your accommodation, and how will you afford your legal costs.
When a couple files for divorce, in the event of an application being made to the Court for a financial remedies order, a court will consider each party’s future needs as well as their potential for future income as part of its consideration of the Section 25 criteria under the Matrimonial Causes Act 1973. The primary goal of the Court is to ensure that the financial settlement is fair and just to both parties by considering the following factors:
- Resources of the parties (income, assets, pensions and mortgage capacities)
- Financial needs during/after divorce (housing, income and pension needs)
- Childcare responsibilities
- Standard of living post-divorce
- Ages of both spouses
- Duration of the marriage
- Health of both spouses
- Their respective financial contributions during the marriage
- Conduct during marriage (although it is exceptional to include this, save where it would be inequitable to disregard it).
- Pensions and the value of the pension benefits lost by a spouse, over their spouses’ pension, as a result of the divorce.
Needs do, however, trump all other considerations and so, your status as a lower earner or non-earner and/or your lesser financial resources will be taken into account in the financial settlement so as to maybe justify a departure from equality in favour of one spouse in respect of the division of property or assets, if this is necessary to meet needs.
It is important to note, however, that spouses do not have an equal claim to their partner’s earnings, and it is exceptionally rare to secure a 50% share of the same.
What happens if you cannot afford to pay legal fees with your divorce?
Generally speaking, each party will cover their own legal fees. As such, the petition issue fee and any additional lawyer’s fees are included in the cost of the divorce and it is the applicant, who has commenced the divorce process, who is responsible for paying the costs, unless a joint application for divorce is made and it is agreed that the costs of the divorce suit are to be shared.
You can also ask your spouse, if he/she earns more, to cover the legal costs initially and that half of these are deducted from your financial settlement monies upon the implementation of this. In the absence of your spouse agreeing this, you can make an application to the Court to make an order that your spouse pays your legal costs. This is known as a Legal Services Order and this type of application is available to financially weaker parties in matrimonial finance proceedings.
Legal aid can assist with the cost of family mediation, and funding legal representation for court proceedings in respect of divorce and finances. You will have to demonstrate that you are a victim of domestic violence or that the child is at risk of abuse from the other person involved to be eligible for legal aid.
Alternatively, you may consider applying for a litigation loan.
Financial disclosure in the divorce process
Early in the divorce process, financial disclosure takes place. Typically, this involves filling out a form E, and it should be a full and exhaustive disclosure of all assets and your income. Questionnaires may be raised after the forms have been completed and exchanged.
After all financial information has been fully and appropriately disclosed, there will be negotiations between the parties. If there is an agreement reached, this will then be submitted to the Court, to approve.
Will I receive spousal maintenance?
When one partner earns significantly more than the other, spousal maintenance may be required. You and your spouse can agree on this, or the court can mandate that the person with greater financial resources should make provision for the other for a specified period of time. Reasonable needs are interpreted in line with the standard of living enjoyed by the parties during the marriage.
This article was brought to you by Kidd Rapinet’s family solicitors. You can book an appointment with any of the family lawyers across our other offices in Aylesbury, Canary Wharf, Farnham, High Wycombe, Maidenhead or Slough, using the form provided. Please use the links provided to find more information on divorce or separation, child arrangements and other areas of family law.
These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or them of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.