Separation & Divorce

Most countries around the world directly encourage resolving family disputes without using courts.¬ This is often known as Dispute Resolution (DR). It covers:

1. Traditional mediation in which a neutral professional assists the couple to resolve any dispute, without the mediator giving legal advice. It covers both financial disputes and arrangements for children. It remains common for parties to also be advised by lawyers in the background during the mediation process
2. Directive mediation is the same as traditional mediation but if the couple find it difficult to settle and reach agreement, the mediator has the power to indicate possible settlement options to direct towards a fair outcome. This form of mediation is often by experienced lawyer mediators and in 'hard to settle' cases
3. Collaborative law occurs when the couple undertake to settle through lawyers without issuing any proceedings unless agreed. If either party then has to issue e.g., because there is no settlement or one spouse is being unreasonable, both have to change lawyers which can be to the disadvantage of some spouses
4. Arbitration occurs when a lawyer qualified as an arbitrator acts as a private judge. The advantage is that the arbitrator can be chosen for the required experience or specialisation of the area of the dispute and it is a more flexible and confidential process than going through courts. The parties are bound by the arbitrator’s decision
5. Early neutral evaluation is an opinion given at an early stage in a dispute by an experienced lawyer as to what may be the outcome if the case were to litigate. It can save costs and become a good indication of a fair settlement

Lawyer negotiation remains the most frequent form of out of court settlement, with each person having their own lawyer advising and negotiating for them and then drawing up the final settlement order.

This applicable law clause would be treated by the English courts as if it was a jurisdiction clause and as an expression of a preference that any proceedings were dealt with in the country of the chosen applicable law.

Either party can apply to the court to vary the maintenance upwards or downwards, or to stop maintenance entirely, if there is a change in their circumstances. For example, the paying party may have a change in income, or the recipient has a legitimate and reasonable change in financial need, or an income so not need any or so much maintenance.

At any time either the recipient or payer can apply to the court for the maintenance to be capitalised, meaning that the payer makes a lump sum payment in lieu of ongoing maintenance.

Where maintenance is for a non-extendable term, it cannot be extended, although it can be varied upwards or downwards during its term.

There is an ongoing duty on both payer and recipient to inform the other of any material change in their financial or other circumstances.

Spousal maintenance arises where one party’s income or assets are insufficient to meet their day to day need, for example if they have a much lower income than the other or have not worked through some or all of the marriage and are unable immediately to become self-sufficient.

'Needs' may be generously interpreted. It is with reference to a number of factors including the assets available for distribution (including capital and income) and the standard of living enjoyed during the marriage. The court’s priority is to ensure the welfare of any children.

The court has a duty to dismiss the financial obligations between the parties as soon as possible. This is known as a clean break.

In some circumstances the court may order maintenance for a short period e.g., of two or five years or as appropriate to enable someone to move toward financial independence, for example by retraining or re-entering the workplace. This is known as a term order, or term maintenance. Some term orders can be extended, whereas with others there is a prohibition on extending the term.

In circumstances where a person has been out of work for many years, for example when raising children, a court may order maintenance on a lifelong basis. This is known as ‘joint lives’ maintenance.

Depending on the parties’ pension provision, maintenance may end on the parties becoming entitled to draw income from their pensions.

There is no set formula for the calculation of spousal maintenance as there is for the calculation of child maintenance.

When determining whether spousal maintenance should be paid, how much should be paid and the length of time for which it will be paid, the court has a wife discretion to consider all of the surrounding circumstances.

In determining the level of maintenance, regard may be had to the parties’ day to day financial commitments including any child maintenance obligations, and how these can be met from the available resources.

The appropriate amount of maintenance varies significantly from case to case, and specialist advice should be sought.

Deciding the amount of spousal maintenance can be difficult though the lack of clear guidance given by the costs.

Definitely. They must be realistically assessed. Because often several countries, or laws, may be able to deal with the dispute of a couple, it is important to establish certain matters before either commencing any form of DR, or often even suggesting it to the other family member. DR should not be commenced:

1. Until jurisdiction has been established i.e., it is known in which country the proceedings will take place
2. Until it has been sorted out regarding which country’s law will be applied
3. The whereabouts and safety of any abducted child has been ascertained
4. The assets which would be required for a fair settlement to be reached have been secured pending the final settlement, possibly with a freezing order to make sure they are not transferred or dissipated without approval

Only then is it safe and prudent to propose some form of mediation or other DR. Of course sometimes having issued proceedings unilaterally at the outset, can mean (but not always) that the prospect of out of court settlements becomes more limited. Nevertheless such action might be necessary at the outset in international cases and it does not prevent people from considering out of court resolution at a later time.

Yes.­ There are a variety of ways in which international family law mediators and other DR professionals work with separated international families to help resolve disputes.­ This can be via a mediator in each country alongside each person, using webcams, and other electronic devices to overcome the cross-border separation.­

Spousal maintenance is maintenance that is paid by one spouse or civil partner to their former spouse or civil partner following a divorce or civil partnership dissolution. It is different to child maintenance.

Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (term of years) or for the remainder of the parties’ life known as a 'joint lives order'.

Spousal maintenance ends if the recipient remarries or enters a civil partnership or if either party dies. It may be varied or dismissed by the courts on a change in circumstances.

This spousal maintenance calculator will help produce a starting point for resolution in the initial period after a final settlement.

Maintenance ends automatically if the recipient remarries or enters a civil partnership or if either the payer or recipient dies.

The paying party can apply to court for the maintenance to be reduced or brought to an end if there has been an adverse change in their financial circumstances or an improvement in their financial circumstances of the recipient.

When considering whether maintenance can be terminated the court will consider whether the recipient of the maintenance can adjust without undue hardship to the end of maintenance.

Spousal maintenance does not automatically end on cohabitation of the recipient, although some court orders provide for this. He Courts take the view that cohabitation is more uncertain than marriage. Cohabitants do not have the same financial claims against one another in the event of relationship breakdown.

Whilst maintenance will not automatically end, when a party receiving maintenance begins to cohabit it may be appropriate for the maintenance to be reduced or end in light of their cohabitation and you should take specialist legal advice if this is the case.

The payer of the maintenance should advise their former spouse of their change of circumstances and should then seek to reach an agreement.

In some circumstances it may be necessary to apply to the court for a suspension of the maintenance order whilst the payer remains out of work.

In the event that alternative employment is found with lower or higher remuneration it may be that either party may then apply to the court for a variation of the existing order.

It will depend on the circumstances in which the original order was made and on how this change of circumstance affects the financial position of the recipient. It may be that the party receiving maintenance is now earning sufficient income so that the spousal maintenance may end. It may be that it can be agreed that the maintenance may be reduced or end, or it may be necessary to make an application to the court for a variation application.

The legal test is whether the receiving party can adjust without undue hardship.