What claims can be brought on divorce, and under which statutes?

Financial claims can be brought under several different legislative instruments, including:

1. the?Matrimonial Causes Act 1973,?which governs divorce and financial proceedings for married persons;
2. the?Civil Partnership Act 2004, which governs the civil registration of same or opposite sex relationships and their associated property law entitlements, which are largely the same as for married persons under the?Matrimonial Causes Act 1973;
3. the?Matrimonial and Family Proceedings Act 1984;
4. Schedule 1?to the Children Act 1989;
5. the?Married Women’s Property Act 1882; and
6. the?Domestic Proceedings and Magistrates' Courts Act 1978.

The following rules also apply to financial orders and remedies:

1. the?Family Procedure Rules 2010; and
2. ?Practice Directions, in particular?Practice Direction 9A.

There is no time limit for making an application for a financial order.

However, a delay can significantly affect the orders which may be made. An example of this is?Wyatt v Vince [2015] UKSC 14?where the wife made an application 30 years after the parties had separated. The application was allowed, but the order which sought ￡1.9 million was described as ‘out of the question’. It is invariably better to consider finances alongside the divorce or dissolution.

Section 28(3)?of the Matrimonial Causes Act 1973 provides that if either party remarries after a decree absolute, that party cannot seek a financial provision or property adjustment order against the other party under that Act.:

"If after the grant or making of a decree or order?dissolving or annulling a marriage either party to that marriage remarries whether at any time before or after the commencement of this Act or forms a civil partnership, that party shall not be entitled to apply, by reference to the?grant or making of that decree or order,?for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage".

An application under the?Trusts of Land and Appointment of Trustees Act 1996?is possible. The right to apply for pension sharing is not lost on remarriage.

If an application is made before a party remarries but is not pursued until after remarriage, the party can pursue the application. However, the court would take the new partner's financial circumstances into account, and it would not be possible for the married party to pursue a claim for periodical payments for themselves.

Resolving all of the financial elements of the divorce or dissolution before cohabiting or remarrying will usually result in a better outcome for the client.

Available Claims

According to?s 23?of the Matrimonial Causes Act 1973, the court has jurisdiction to hear a financial claim if it has jurisdiction to hear an application for divorce, nullity or judicial separation.

The court’s powers are wide regarding the types of orders it can make. A financial order is defined in?r 2.3?of The Family Procedure Rules as the following:

1. An avoidance of disposition order. An application for this type of order is filed where a party has disposed of assets intending to prevent their spouse from accessing them through a financial claim.
2. An order for maintenance pending suit or pending outcome of proceedings. Interim orders like these require a party to financially maintain their spouse while financial affairs are being resolved through the court.
3. An order for periodical payments or a lump sum under the?Matrimonial Causes Act 1973?or the?Civil Partnership Act 2004.
4. A property adjustment order includes orders to sell the property to facilitate the payment of a lump sum, transfer of the property into the name of one party either permanently or for a while, or settle property on trust. These orders can apply to real, personal or business property, most commonly the family home.
5. An order varying the terms of a settlement which has a nuptial element: normally a trust, but other arrangements can be regarded as settlements.
6. A variation order can vary an existing financial order and can be important where a client’s circumstances have changed significantly since the original order was made.
7. Pension sharing or pension compensation sharing order.
8. An order for payment in respect of legal services.

When making a financial order, the court may uphold, vary or completely exclude the terms of any pre or post-nuptial agreement.

Practical Considerations

• Unresolved Financial Matters: If financial matters were not resolved at the time of the divorce, it is crucial to address them before either party remarries. Once remarriage occurs, the ability to make certain financial claims is significantly limited.
• Legal Advice: It is advisable to seek legal advice to understand the implications of remarriage on financial claims and to ensure that any outstanding financial matters are resolved appropriately.

Contact Information

James Thornton Family Law is now open for business, and we’re ready to help with your family law needs. For more information or to book a consultation, please get in touch:

• Phone: 01904 373111
• Email: [email protected]
• Website: www.jamesthorntonfamilylaw.co.uk
• Office Address: James Thornton Family Law, Popeshead Court Offices, Peter Lane York YO1 8SU