What is Financial Remedy?
You know that you need to resolve your finances now that you are getting divorced, but what is Financial Remedy?
Financial Remedy is the legal process that splits your assets and makes financial arrangements for you and your children. Heard the term ‘ancillary relief’? – that’s what financial remedy used to be called.
Your financial claims against each other end in one of two ways. Following a consent order, where you and your spouse reach your own agreements. If no agreement is reached, after a Financial Remedy Order (in which the court decides).
How to get started
You must see a mediator if you want to issue Form A unless an exemption applies. (Read more about mediation and exemption circumstances here). Use mediation to disclose and negotiate with the support of the mediator. If you reach agreement, you only need to complete the first part of Form A. Find out more about financial disclosure in last week’s blog post How to prepare for financial disclosure
Issue Form A
When mediation isn’t suitable or doesn’t work, negotiate with the help of solicitors. This can be done through a collaborative process where you have ’round table meetings’ or through traditional means. If this is unsuccessful, issuing Form A is the next step. The current cost to issue is £255 (July 2019).
What orders can the court make?
Form A lists the type of financial orders the court can make. You should indicate all that apply to you. I explain a few of them here:
Orders about property
Property adjustment orders
Refers to the transfer of property ownership from one person to another, usually the family home, though other property assets may be involved. There are different types of property adjustment order:
An outright transfer
This is the simplest order, transferring ownership to a named party.
If the property is mortgaged the transfer will either involve redemption of the mortgage (by payment of a lump sum), or for the new legal owner to be subject to a mortgage. When this happens, the court order should include an undertaking (promise to the court which can be enforced) by the person to whom the property is being transferred, to pay the mortgage and comply with all the terms. There should also be an indemnity to protect the transferring party against future payments.
Transfer subject to charge
This provides for the transfer of a property subject to the transferring party receiving payment of a financial sum at a future date. The lump sum can be expressed as a fixed amount or as is more common, on the basis of a percentage of the proceeds of the sale.
Payment is triggered at either a fixed date, or upon the occurrence of certain events. This can include the youngest child of the family attaining the age of 18, or finishing full time secondary education.
This postpones the sale of the property until certain trigger events relating to children take place. These events can include the youngest child leaving education. The divorcing parties decide their own trigger events. In the meantime the property will continue to be held in the joint names of both parties, rather than being transferred.
Similar to a Mesher Order, the Martin Order does not relate to children. It enables one one party to occupy the property until certain trigger events occur, for example remarriage, cohabitation or the desire to leave the property.
Transfer of Tenancy
This is an order transferring a tenancy into one party’s name.
Orders about money
The court has power to order the payment of lump sums to one spouse by another. This can be in one or more instalments. Lump sum orders cannot be varied or discharged. Orders by instalment may be varied as to the timing or method of payment only.
More commonly known as maintenance payments, periodical payments relate most commonly to spousal maintenance. Periodical payments might relevant if you or your soon-to-be-ex-husband gave up work to care for children or other family members.
Spousal maintenance is no longer as popular as it once was with the court. Usually spousal maintenance will be temporary to allow you to retrain or find a better paid job. If you are older, or have a physical or mental health issue you may be awarded spousal maintenance for life – a life order may be until pension payments begin or until you die.
Orders for periodical payments can be varied up or down and extended by application to the court by either party. However, the order ends upon the death of either party or the remarriage (or entering of a civil partnership) of the recipient.
Child Maintenance that is not agreed cannot be dealt with by the court unless your husband is a high earner earning in excess of the Child Maintenance Service (CMS) maximum. Currently the maximum earnings threshold is £3000 per week. If your soon-to-be-ex-husband earns more than this, you can seek additional child maintenance. This is known as a Topping Up Order.
If you do not agree child maintenance and your soon-to-be-ex-husband earns less than this, you will need the support of the Child Maintenance Service.
Where you have reached agreement about the payment of maintenance, this can be included in your consent order.
If you are applying for orders under the Children Act 1981 you would complete the section in Form A. This could be for Top Up or the payment of school fees or additional payments because of child disability.
Orders about Pensions
Pension sharing involves the legal transfer of pension rights from one spouse to another. This includes both occupational and Additional State Pension but doesn’t include the Basic State Pension. The extent to which the pension is shared is subject to negotiation or court order. Fees are involved.
After Form A has been issued
Once the court has received Form A, both you and your soon-to-be-ex-husband will get a First Directions Appointment notice. This will tell you when the first court hearing is. The notice will also contain directions about the exchange and filing of Form E. Further, the notice contains the dates for the service of your Questionnaire, Chronology, Statement of Issues and Form G (readiness for Financial Dispute Resolution notice).
Make a note of all the dates you need to comply by. Be prepared and keep on top of the paperwork for each appointment.
You can, and will be expected to continue to negotiate a settlement with your soon-to-be-ex-husband all the way through proceedings even when you have court hearings pending.
If you have a solicitor
If you have a solicitor acting for you, they will take care of most of the financial remedy process for you. They will, of course, need your active input. Ensure you give yourself plenty of time to act on any requests or instructions they give you.
If you are self-representing
It’s possible to handle financial remedy without a solicitor if you can’t afford or choose not to instruct one. As I said in my last blog, organisation is key. As is the ability to stay realistic and see that as far as the court is concerned this is simply the application of the law.
Judges have hundreds of cases to deal with. They are there to meet the overriding objectives of ‘fairness’, avoiding delay and saving costs. They don’t know you personally and won’t get caught up in emotional back stories. It’s not personal – its just business.
So you need to work with the system you have. And the best way to get a good outcome is to know the strengths and weaknesses of both yours and your ex’s case. That means getting organised, being prepared and staying calm.
No solicitor but need help?
I’ve supported lots of self-representing women, as well as those working with solicitors. Is it easy to self-represent? No. But is it doable? Absolutely. One of the most powerful things I do with clients is show them that just because their ex has a lawyer, it doesn’t mean they should give up on their own interests.
Solicitors are all Officers of the Court. They are bound by duties, obligations and codes of conduct. Most solicitors (sadly not all), take this seriously and will treat you with the courtesy and respect you deserve, just as you will them. You don’t need to be intimidated. But my clients tell me that having a trained coach, mediator and former lawyer on their side is invaluable when it comes to getting this done!
If you need help to figuring what you need to do next, or gathering the confidence to do it, with or without a solicitor, get in touch.
Whether it’s through joining my community of empowered ladies all supported by me, or through one to one coaching, I can help you get the future you want.
The Divorce Alchemist
Emma Heptonstall, the Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a practising family mediator and founder of Get Divorce Ready the online self study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com