When your marriage breaks down, no doubt one of the first thoughts that goes through your head is how you will cope financially and how the assets will be divided. You do not need to agree on a settlement during your divorce and you can do this pre or post your divorce, although there are good reasons as to why you should deal with this during your divorce.
A first assumption that many people have, is that the basis of the divorce will adversely affect your financial settlement. This is not the case. The only time the behaviour of a party will impact the divorce is if the behaviour is so severe. Many people ask if this includes adultery, and no, this is not considered bad behaviour or conduct.
When coming to a financial settlement in a divorce, you will need to take into account a number of different factors, as these are the factors a Judge would take into account when making an order. These factors are usually referred to as the section 25 factors.
The Court will consider:
1. The income, earning capacity, property and other financial resources of both you and your ex-spouse, including in the foreseeable future;
2. The financial needs, obligations and responsibility of both you and your ex-spouse, including in the foreseeable future;
3. The standard of living enjoyed by you both during the marriage;
4. The age of both you and your ex-spouse and the duration of the marriage;
5. Any physical or mental disability of either you or your ex-spouse;
6. Any contributions made by you or your ex-spouse (this includes any contribution by looking
7. Any conduct of you or your ex-spouse (the “bad behaviour”).
When taking these factors into account, it shows why each case is different and that the Family Courts have discretion in making financial settlements.
The outcomes are not usually straightforward and you (or your ex-spouse) can even ask for a life insurance policy on your (or your ex-spouses) life to protect you and your children in case that person dies and therefore any maintenance payments would stop. You can negotiate this insurance payment as part of your financial settlement.
If, for example, the Court has ordered that your ex-spouse should pay spousal maintenance to you and they are no longer doing so, even during the Covid-19 pandemic, you can go to Court to enforce this. You should seek immediate legal advice if this is the case.
For the avoidance of doubt, this includes child maintenance and if your ex-spouse has failed to pay child maintenance, then you should obtain legal advice.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a person fully qualified before decisions are made and before you embark on a certain course of action.
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