The Court has a duty to consider all the circumstances of the case, with the first consideration being given to the welfare of the children of the family. This is the Court's priority, but it is not paramount.
The aim of Financial proceedings is to settle the finances of the parties, which leads to a Consent Order being made by the Court. In order to achieve such a settlement, the parties are under an absolute duty to provide, to each other, full and frank disclosure of all their means, assets and liabilities.
If the matter is contested and runs to a Final hearing this can be very costly for both parties. The greater the costs of the case, the less money there is available in the matrimonial "pot" for distribution between the parties.
The Court can make the following Orders:
- Property adjustment Orders.
- Orders for sale.
- Lump sum Orders.
- Pension sharing Orders.
- Maintenance pending suit Orders.
- Periodical payments Orders.
These Orders may be applied for once the Divorce Petition has been filed with the Court but (with the exception of Maintenance Pending Suit Orders) the application cannot be heard until Decree Nisi has been pronounced. The Order does not take effect until Decree Absolute.
Financial Relief (the unmarried Family)
When two people live together, there is no body of legislation in place to protect them as there is with married couples. The law, in this regard, is presently under review. The only recourse available is Contract Law or complicated Trust Law in relation to the property.
Where property is held in joint names, the law assumes that it is held equally, i.e., 50:50, unless there is evidence of an agreement, either verbally or in writing, that the shares are held in some different proportion. When the position is set out in writing the position is normally clear cut.
However, where there is no written agreement, and where one of the parties claims a substantial and significant contribution to the purchase, upkeep or improvement of the property then the Court can make a determination that the shares are held other than equally. This very much depends on the strength and reliability of evidence.
In deciding whether to order a sale or declare a person`s interest in a property the Court must take into account the following factors which are set out in Section 15 of the Act.
- The intentions of the person or persons (if any) who created the Trust;
- The purpose for which the property, subject to the Trust, is held (i.e., the current purpose rather than the original purpose);
- The welfare of any minor who occupies, or might reasonably be expected to occupy, any land subject to the Trust as his home and;
- The interests of any secured creditor of any beneficiary and the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in the property subject to the Trust (or in case of dispute) of the majority ( according to the veil of their combined interests).
Important information to be obtained from you
In order to assess your case, you will need to ascertain the following:
- What discussions took place prior to and during the purchase of the property with your partner?
- Who paid the deposit on the property?
- Who paid the legal fees, surveyor`s fees and who paid the stamp duty? Was there any agreement in relation to how this money was paid?
- Who made the mortgage payments and from which account? Who paid the other household expenses and from what account?
- Were there any structural repairs or alterations carried out, e.g., an extension or new roof?
- Who paid for other expenditure such as holidays, furniture, children`s clothing and equipment, and so forth? From which account were these sums paid?
- Were you engaged at any time during your relationship?