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As experts in divorce and family law, we have years of experience advising clients on financial orders. This includes setting aside financial orders, variation or capitalisation of financial orders and enforcement of financial orders. Get in touch with our divorce lawyers today to find out how we can help you.
A financial order is a Court Order that outlines how two separating parties will manage their finances after they divorce. Once they’re issued by a court, they’re legally binding.
A financial order is made by a court when both parties separating agree to the order. If both parties cannot agree, the court decides what the financial order should entail. If either party doesn’t comply with the financial order, then it can be enforced by the court. The order can be appealed if there appears to have been an error in fact or law.
In some very limited instances, it may be possible to set aside the financial order. This means that the order can effectively be reopened and new decisions on the order can be made. This is very rare, and is therefore a specialist area of law. There has to have been fraud, mistake, material non-disclosure, supervening events which invalidate the order, or undue influence.
If the events in question arose at or before the order was made, then it is best to set aside rather than to appeal.
If you think you could set aside your financial order, it’s essential that you obtain independent legal advice as soon as possible. In some cases you, may only have a few months to set aside an order. This means that as soon as your suspicions arise, or you become aware of what has happened, you should seek legal advice straight away. There have been cases where the criteria to set aside the order have been proved, but the applicant has left it too late, therefore the order was never set aside.
Austin Kemp’s team of expert solicitors are experienced in dealing with this relatively rare and very complex legal issue. We specialise in advising high net worth individuals, or ex-partners of high net worth individuals, who have complex property and assets both in England and Wales and internationally.
We are able to advise whether you may be able to set an order aside even if the assets or investments in question are abroad.
If you think your partner has committed fraud by failing to disclose something when you were discussing your financial order, then it is imperative that you obtain specialist legal advice as soon as possible. Similarly, if you suspect your partner failed to give a full financial disclosure that could have changed the outcome of your financial order (e.g. hidden a job with a pay rise), then Austin Kemp’s team of solicitors are here to advise you on your case.
Alternatively, if you need to defend your partner’s application to have your financial order set aside, then we can advise you on the merits of their case and how you should proceed in defending the order. Setting aside financial orders is a very rare and specialised area of law, and you should make sure that you have the best possible legal advice, whether you are the applicant or the defendant.
If a court orders one pension to pay their ex an income, either one of them can ask the court to change the amount or fix a lump sum to pay it off once and for all.
One of the parties may apply to vary the order; this can occur in situations where the maintenance is no longer enough, or where the party paying the maintenance order can no longer afford to do so at the level stated in the order. Jobs can be lost and bonuses can be cut in times of economic downturn, making the original maintenance order unmanageable. If you are in this situation, it is important to seek independent legal advice before doing anything such as stopping payments.
Learn more about changing a financial order.
As well as varying a maintenance order, it is also possible to turn it into a lump sum instead of smaller payments. This is called capitalisation of financial orders. Some people prefer this, as it enables them to move on. It is important to note that not all financial orders can be varied. For example, lump sum or property adjustment orders cannot be varied unless they are paid in instalments.
At Austin Kemp, we offer expert advice relating to variation and capitalisation of financial orders. If you find that your spouse is living in much better financial circumstances than when the order was made, or you’re living in much worse circumstances, we’re here to help. Alternatively, you may wish to move on from your relationship, and would like to turn the payments into a lump sum. We can also help if you find out that your previous partner wants to vary the financial order – it’s never too early to seek specialist legal advice.
Our team of expert solicitors at Austin Kemp will guide you through the financial orders process, and are particularly experienced in dealing with individuals who have large quantities of assets and investments not only in England and Wales. but also abroad.
Before going to court, it’s important to attempt to renegotiate the order with your previous spouse’s solicitors. We are experienced in negotiating with the other party’s solicitors in order to avoid lengthy court battles, but if an agreement cannot be reached, we have the necessary experience and expertise to take your case to court.
The court will consider not only your and your previous partner’s needs, but also the needs of any children. Austin Kemp will provide you with specialist legal advice in order for you to achieve the best outcome and make sure you have a solid legal argument for your case.
A variation or capitalisation of a financial order can be a relatively quick process if the initial negotiations are successful. Alternatively, it can take much longer if we need to take it to court.
If either party doesn’t comply with the financial order, then it can be enforced by the court and could even result in the non-complying party going to prison through contempt of court. However, there are other remedies in English and Welsh law – and abroad – if the other party will not cooperate with the order.
This can be an extremely difficult time for both parties, who have just gone through the upheaval of a divorce. If your previous partner is refusing to cooperate with the terms of the financial order, then this can make what is already a stressful time become almost unmanageable. This is why it is important to seek independent legal advice from a specialist team of solicitors such as Austin Kemp.
There are various enforcement methods available to you if your previous partner will not cooperate with the financial order. These include a charging order (attempting to attach a charge against land), attachment of earnings (money can be deducted directly from the payer’s salary), a third-party debt order (attempting to seize money, even from a bank account) and warrants of possession or execution (seize goods or secure possession of premises). It is also possible to make a non-payer bankrupt and seize all their assets.
It’s important to act fast, as any maintenance payments that haven’t been paid for more than twelve months since the enforcement order was made could be written off. It’s also worth noting that you may be due interest on any unpaid capital payment.
Austin Kemp has a team of expert solicitors who specialise in the enforcement of financial orders. We have a particular speciality with regard to high net worth individuals who have investments and assets not just in the United Kingdom, but all over the world. If you wish to enforce a financial order, we are experienced in the court systems of both England and Wales (and abroad), and are able to advise you of the best way to proceed. Alternatively, if you have been told that you have failed to comply with your financial order, then we have experience in advising you of your options. If this is the case, it’s imperative that you seek independent legal advice with specialist solicitors as soon as possible in order to best protect your assets and your freedom.
Austin Kemp are also experienced in dealing with enforcement orders when the party who is not cooperating is outside the jurisdiction. We can guide you through the process either in courts in England and Wales or abroad.
Recently, a change in the rules has enabled parties to ask the court to enforce an order ‘by such means as it sees fit’. At Austin Kemp, we don’t make those applications. We see it as our business as professionals to work out what enforcement method is most likely to work, and not leave it for a judge to decide. We work with our clients to make a specific application so that enforcement is as speedy as the court system allows. Contact our divorce lawyers today for expert advice and support today.