When a marriage breaks down there is much that needs to be sorted out. One of the most important considerations is the issue of resolving the future financial arrangements, which should be made part of a formal court order which will give both parties protection moving forward. This will ensure that both parties will know where they stand and can begin to plan the next stages of their lives.

How are we going to pay the mortgage and all the other outgoings?

One of the key aspects of those financial arrangements will be how each party is going to live. When there is a great deal of money, this is less of a problem, for there will then usually be enough to ensure that both parties are able to cover their everyday expenses − sometimes with something left over. The majority, however, will not have the luxury of that sort of financial freedom. In these cases, it will be a question of how the available resources should be split between the couple. 

The incomes that have previously been used for the family as a single group will, in the future, have to cover two households, including, very often, the support of children who will usually be spending time with each parent. Nearly always, sacrifices have to be made and the usual result is that there is less money for each party. That is just one of the realities of divorce and separation.

The earnings of each party is sometimes a contentious issue. If one party is earning and the other is not, the earning party may raise the issue of whether the non-earning party could and should obtain paid work, either full or part time. 

Who is the main carer for the children?

Very often, the party who is not in work will be the main carer of the children, who may be young. In those cases, it will have to be decided how long that party can be expected to stay at home or when and if she (more often than not, the mother of the children, but sometimes the other partner) should be expected to try to obtain employment, even if it is part time work that can be fitted in with the care needs of the children.

Court’s approach

When dealing with these difficult cases, the approach of our practitioners is always to try to help the parties reach some an agreement without a court hearing. If that proves impossible, it may be necessary for the court to make a decision. The court has the jurisdiction to make maintenance orders between spouses: whereas maintenance for children is usually (with some exceptions) dealt with through the Child Maintenance Service, which has taken over from the Child Support Agency.

First consideration – the children

The starting point is always the needs of the children. The law states specifically that that is the “first consideration”. Problems sometimes occur, however, when that consideration comes to be interpreted in each case. For example, there may be a disagreement as to the precise “needs” of the children and how much money is required to meet those needs.

The court will usually decide that children will do better overall if their main carer is at home when they are very young, or at least, that there is regular and satisfactory substitute child care. Once the children start full time school, it is often the case, particularly where financial resources are stretched, that the court will expect the carer of the children at least to investigate the possibility of obtaining part time work, moving on to full time work the older the children get. However, if it is suggested that the parent who is the main carer for the children should work, even if only part time, a judge would expect to be presented with clear evidence not only that suitable work is available but also that the work can be undertaken during hours when child care duties are not required. Every case will, of course, depend on the circumstances in that family and the judge has a very wide discretion as to the solution which is most suitable.