Agreeing the terms of a financial settlement on divorce is, typically, one of the final landmarks for divorcing spouses and civil partners. But it is also the issue which is likely to create the most acrimonious disputes. It is advisable to always seek the guidance of a family law lawyer when negotiating a financial settlement, to ensure your best interests are preserved when the ancillary relief order is considered by a court.
Once the court has ruled on a financial remedy order, the former spouses are bound by its direction. However, if the parties’ financial situation changes, the court’s ruling may later seem unfair and at this point one spouse may seek a variation order.
During a period of national economic stability the major wage earner will probably enjoy high bonuses and the prospect of regular salary reviews and a court may take this into consideration when ruling on a financial claim, but in a recession or economic downturn the terms of a divorce settlement ruling can suddenly appear punitive when some of these benefits are lost.
Assets, bonuses, shares and savings
In a typical high-value financial settlement where the couple have young children it is likely that ownership of the matrimonial home will be transferred to the spouse with whom those children are going to live (usually the mother), or it will be placed in trust until a certain event, such as both children reaching the age of 18, when it will be sold. There may also have been a pension sharing order made, a lump sum payment may have been ordered in place of on-going maintenance payments, and monthly child maintenance payments will be required, perhaps with school fee payments included.
Most high earners will usually be left with shares and investments, the balance of savings after a lump sum has been taken, the balance of pension, and predicted future bonuses.
Yet, if a global economic downturn occurs, the former-husband may find his personal wealth, and ability to rebuild it after the divorce through continued earning, diminished and it may even be stripped down altogether if redundancies and wage cuts occur.
In such cases a spouse may feel that he can’t pay and therefore won’t pay maintenance sums – but this can be a dangerous approach to the situation.
Re-negotiating a divorce financial settlement
If an ex-husband refuses to pay maintenance or keep up mortgage payments, as agreed in a court order, this could result in a further court hearing and, in extreme circumstances, a custodial sentence can be handed down if he cannot provide compelling evidence for the cessation of payments and failure to provide for his children.
Nevertheless, parties to a divorce cannot arbitrarily re-open divorce settlement cases for variation purely because it appears that the terms have become unfair.
When considering a financial settlement variation order, first and foremost, the court will be concerned with the welfare of any minor children and will require evidence that the events leading to the request for a variation were unforeseeable and were not in some way caused by the spouse who is now suffering financial hardship.
Under section 31 of the Matrimonial Causes Act 1973 family law courts have the power to vary periodical payment orders, but have no ability to vary other types of ancillary relief orders such as lump sum orders (except in the varying of instalment payments) and property adjustments.
Consult your divorce solicitor for advice on variation
The family law solicitors at Healys are happy to discuss the terms of your financial settlement on divorce and can advise you on the possibility of applying for a variation order.
Our many years’ experience as specialist family law practitioners has taught us that each individual situation is different. We can help by listening sensitively and giving you straightforward legal advice so you can weigh up the options that will work best for you.
When things are amicable we can help you keep it that way, and when things are tough we can help fight your corner.
For more information on services we offer, please contact Catherine Taylor on 01273 669 124 or email firstname.lastname@example.org in Brighton. For London enquiries please contact Jane Sanders on 020 7822 4107 or email email@example.com.