A court deciding on a fair division of financial resources following a divorce / dissolution may make one or more of the following orders.
Maintenance Pending Suit (MPS) is an Order requiring a party to a marriage / civil partnership to make to the other partner regular (periodic) payments for their maintenance.
MPS can be backdated to the date of the Petition. It ends when the divorce or dissolution proceedings end (usually on the granting of the final decree). MPS may be replaced at that point by an Order for interim periodical payments, which can continue until the financial remedy claim is decided, or for such other period as the Court thinks appropriate.
An Order for periodical payments requires one partner to pay a regular amount to the other for their maintenance. The payments are made as frequently and for as long as the Court considers appropriate. Most commonly, payments are made each calendar month and (unless the Order says something different) in arrears.
An Order for periodical payments which is made prior to the final financial Order is called an Order for interim periodical payments.
An Order for periodical payments will end:
A periodical payments Order may be varied upwards or downwards by the Court for so long as it remains in force. On any variation application, the Court is required to consider whether there should be a clean break (for example, if there is enough capital to make one or several payments to buy out the balance of the periodical payments).
A Periodical Payments Order can be made for the benefit of a child of a marriage / civil partnership in certain limited circumstances. As a general rule, maintenance in relation to children is dealt with by the CMS.
The Court may make an Order if the parties agree for the maintenance of children under the age of 18 whether or not there has been an assessment made by the CMS. Such Orders are binding for at least twelve months. However, after that first year, if either parent wishes to change the terms of the Order, either may apply to the CMS. The assessment made will then supersede and replace the terms of the Order relating to child maintenance.
If there is no agreement, the Court is only entitled to make an Order for child maintenance:
A periodical payments Order for a child will terminate when the child reaches the age of 18 or ceases in full time education. Where funds permit, periodical payments for a child will often cover university education to include a first undergraduate degree.
If a child is over 18 and is in full time education, he or she may (in limited circumstances) be able to bring an application for periodical payments against either or both parents.
A periodical payments Order in favour of a child may be varied upwards or downwards by the Court for so long as it remains in force.
The Court can order that a periodical payments Order (whether to benefit a partner or a child) be secured – in other words, to provide a security to guarantee the payments will be made. The nature of the security and the duration for which security must be provided will be decided by the Court.
For example, the paying party may be required by the Court to assign a death-in-service benefit provided by their employer to their former partner. Alternatively, there could be a charge against a particular asset so that if the paying party defaults, the asset would be sold and the proceeds used for the periodical payments.
One party may be ordered to pay to the other a lump sum of money.
The Order will be expressed as payable within a certain period of time (for example, 28 days). However, a lump sum Order cannot be enforced until the marriage / civil partnership has been brought to an end by the final decree.
The amount that must be paid under a lump sum Order cannot (once the Order is made) be varied. In certain limited circumstances, the timing of the payment may be accelerated.
The Court may only make one lump sum Order. However, the total payable can be expressed in terms of a series of instalments payable on identified dates. A lump sum Order payable by instalments can be varied as to the timing of payments (but not the total amount).
The Court may make a lump sum Order in favour of a child, but this is extremely unusual.
In relation to real property (houses, land etc) the Court may direct:
one party to transfer to the other (or to a child) property that they own or to which they are entitled;
one party to settle property on trust for the benefit of the other (or a child) and / or
variation to the terms of a nuptial settlement or trust (which can include a nuptial agreement) made between the parties.
Once made, the Court cannot vary a Property Adjustment Order. A Property Adjustment Order cannot be enforced until the marriage / civil partnership has been brought to an end by the final decree.
Where the Court has made a Secured Periodical Payments Order, a Lump Sum Order or a Property Adjustment Order, it may also direct the sale of property owned by the paying party (or to which they are entitled) to satisfy the terms of the Order.
The Court may specify how the proceeds of sale are to be used, or to whom the property is to be offered for sale.
The Court may specify when the sale should take place, but an Order for sale cannot take effect prior to the final decree. An Order for sale may be varied by the Court only in relation to its terms and not as to its substance.
There are various ways in which the Court can deal with pensions on divorce / dissolution.
The presumption is that each party to a financial dispute will bear their own legal costs.
The Court retains the power to make orders for costs, but will be unlikely to do so unless it can be demonstrated that one party has conducted themselves in such a way to have unreasonably increased the costs of the other by making the proceedings more difficult. This is known as litigation misconduct.
If one party has to make an application for MPS or to enforce an Order, then the Court is likely to award them their costs for having to do so.
In some situations, it may be possible to include in a claim for MPS / interim periodical payments an element of maintenance to assist with legal costs.
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