Wednesday, December 11, 2013
Family Lore Clinic: Do I have to apply to the court for consideration of [my] financial position?
When I first saw this question, I assumed that it was asking whether an application to the court for a financial/property settlement had to be made in all divorce cases. The answer to that question is simple: no - you only have to make an application if you cannot agree a financial settlement with the other party, for example through solicitors or via mediation. (Although technically, if you reach an agreement where claims are to be dismissed in a consent order, then you will have to make those claims so that the court can dismiss them.)
However, on closer inspection I realised that the wording of the question matched section 10(2) of the Matrimonial Causes Act 1973. Section 10(2) enables a respondent to a divorce petition based upon two years' separation and consent or five years' separation to apply to the court for consideration of their financial position after the divorce. The idea of such applications is to prevent respondents in such cases from suffering financial hardship as a result of the divorce. Accordingly, once the application has been made the court will not allow the divorce to be finalised unless it is satisfied either that the petitioner should not make any financial provision for the respondent, or that the financial provision that they have made is reasonable and fair, or the best that can be made in the circumstances.
The answer to this question is also no - you do not have to make the application. However, depending upon the circumstances of your case, it may be appropriate for you to make the application - you should therefore take specific advice from an expert family lawyer before deciding whether or not to make the application.