Family legal terms explained: Matrimonial
The legal jargon involved in divorce and financial proceedings can be difficult to understand. We have summarised and explained some of the most frequently used legal terms to help you understand what they mean.
An expert family barrister can help guide you through the process and represent you in court if necessary. If you would like to instruct one of our team of experienced family lawyers, read our simple step-by-step guide then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next.
In England and Wales applications for financial relief following the presentation of a petition for divorce are known as ‘ancillary relief’ under the Matrimonial Causes Act 1973 because these applications are ‘ancillary’ to a divorce petition. In the Family Procedure Rules the term used is ‘financial order’ or ‘financial remedy’. Both terms are routinely used in court.
A clean break means the financial ties between you and your spouse are concluded. Therefore, for example, there would not be an order for ongoing maintenance. In some cases this may involve paying a lump sum to your spouse. Clean break cases might also involve pension sharing orders because the pension split happens as a single percentage-based transfer arrangement once the decree absolute is received by the parties.
A consent order is an order of the court, which was made by agreement between the parties. To make an agreement legally binding, the parties would need to submit it to court for the Judge to consider whether to make it into a consent order.
It is important that such an order is comprehensive. This sort of order will be signed, dated and submitted to the Court so that the Judge can assess whether the agreement constitutes fair and proper financial provision for the parties.
If a consent order is filed without a hearing it should be sent with Form D81 (a statement of information) and Form A for dismissal purposes.
Six weeks after the decree nisi has been granted the petitioner can apply for a decree absolute which is the legal document that ends the marriage. If four and a half months have passed since the decree nisi was granted the respondent can apply for decree absolute.
This is a request to proceed. The petitioner will fill in a form for the decree nisi, and usually files this with the respondent’s response document. The judge will consider whether there are grounds to grant decree nisi.
Disclosure, and updating disclosure, is the term used for the evidence supplied in respect of your finances – submitted as part of your Form E, and then updated for hearings. This will include bank statements, mortgage statements, details of loans and pensions etc.
An FDA is a First Directions Appointment in financial proceedings. The purpose of this hearing is to decide what more information (following an exchange of Forms E) the parties and the court needs to make orders. The usual practice is for the parties to arrive early at court for the lawyers to attempt to agree the questionnaires and case management directions to reduce the time spent before the judge.
This is the second court appointment in financial proceedings. An FDR (Financial Dispute Resolution) hearing is a without prejudice hearing (ie any offer or concession made for or during this hearing, in an attempt to settle a dispute, cannot later be used against the person who made it at the trial). At this appointment the judge may give an indication on some or all of the issues in your case, in order to enable the parties to gain a better understanding of the view a judge might take if on issues if the case went to trial. The FDR is without prejudice which means that if matters cannot be resolved the judge at the FDR is not permitted to be the judge at the final hearing. The judge does not hear evidence at this hearing. It is usual practice for both parties to arrive early to discuss their positions with a view to settlement.
This is the term used in the Family Procedure Rules to describe forms of financial relief which can be ordered by the Court. The main rules can be found in Part 9 of the Family Procedure Rules.
Form A is the Notice of Intention to Proceed with an application for a financial order. You can find a template here. An application costs £225 and you’ll need to send two copies to the court. This is the first form you would file in financial proceedings.
Form E is a detailed financial statement which you will need to produce and send to the court and the other party before an FDA. You can find a template here.
Form H is an estimate of legal costs incurred, which is required for each hearing. You can find a template here.
Lump Sum Order
A lump sum order is an order for one person to pay another a lump sum. A lump sum can be paid in instalments.
This is a court order which governs how the family home will be dealt with after divorce. It allows the sale of the family home to be deferred for a certain length of time or until a specific “trigger” event takes place, such as when the children are 18 or if the resident party has cohabited with a new partner for a certain length of time. This order will decide how the equity will be split between the two parties.
Order for Sale
The court can make an order under the Matrimonial Causes Act 1973 to adjust the parties’ resources to achieve a fair outcome. One of the orders it can make is an order for sale of property. This may be necessary in order to ensure both parties are housed.
Pension Sharing Order
A pension sharing order is an order, which transfers part of a pension pot to the other party. It enables a clean break between the parties as the assets are split immediately. The order will set out how much of the pension will be given to each party as a percentage, and decide who should pay the costs. This order must be made by the court for the pension provider to give effect to it. A pension sharing order will also be filed with Form P1 which sets out the material details of the relevant pension and the arrangement for the percentage to be transferred into.
The petition is the document that starts the divorce process.
The petitioner is the spouse who writes the ‘petition’ and serves it on the other spouse. The petitioner will send two copies, together with a fee, to the nearest divorce court.
Property Adjustment Order
These orders deal with property rights and are used to transfer property from joint names to one name, or from one name to another. There is no definition of what such property should look like, as long as it is sufficiently identifiable, i.e. ‘property’ does not necessarily mean ‘family home’.
This is the document both parties may submit if they seek to clarify anything that the other party has, or has not, written in their Form E. The questionnaire will be considered by the Court at the FDA.
The respondent is the spouse who receives the petition from the petitioner.
Schedule 1 Cases
Schedule 1 pertains to Schedule 1 of the Children Act 1989. These cases concern financial provision for children. Applications under Schedule 1 can include: top up maintenance, lump sums, carers allowance, transfer/purchase of property, etc.
Section 25 Factors
The Section 25 Factors are what the court looks at to help it decide whether to make an order requested in family proceedings. The court will approach this exercise having regard to all the circumstances in the case. The first consideration will be the welfare of the children of the family and the starting point is provision of accommodation for the children. The overarching objective is fairness – avoiding discrimination between the party who has been the homemaker and the party who has been the breadwinner.
“Section 25” refers to the relevant part of the Matrimonial Causes Act 1973. The factors include matters such as the income, financial obligations and conduct of the parties and the needs of the child. A full list can be found here.
Legal separation is different to divorce. A separation is when you and your former spouse have stopped living as a couple. A legal separation is the process by which a couple can agree a written document which records their intention to split their assets. Some couples choose to separate instead of divorce because it is cheaper or for other reasons, such as when their religious beliefs do not agree with or allow divorce; or if they have been married for under a year. A separation agreement recorded by the court will not be binding but can be looked at in the event of any dispute. The document filed with the court for a legal separation is the same petition that you would submit if you were getting a divorce, and you will also need to pay a court fee.
Spousal maintenance is money that is paid by one spouse to the other following a divorce. It is usually paid on a monthly basis either for a defined period or it could be for the remainder of the parties’ life. The amount you receive depends on how much you need to live on, how much income you have and how much you could possibly earn in the future, amongst other factors.
An undertaking is a solemn promise to the court. If you break an undertaking you could be fined or sent to prison. It is as binding as an order of the court.
Natasha Isaac | Divorce and Finance