Divorce & JS Powers

Orders

The judicial separation and divorce legislation each contain significant powers for courts to make awards in relation to the family income and assets. The powers arise only when a court orders a judicial separation or divorce.

Where a judicial separation has been granted, and a divorce is later applied for, the orders may, in effect, be reviewed.

A judicial separation can be applied for without a divorce and vice versa. A longer qualification period applies for divorce.

Setting Aside Evading Transfers

A “reviewable disposition”,  means a transfer ade by the other spouse concerned or any other person. It does not include such a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in good faith and without notice of an intention on the part of the respondent to defeat the claim for relief.

The court, on the application of a personwho has instituted proceedings that have not been determined for the grant of relief, may—

• if it is satisfied that the other spouse concerned or any other person, with the intention of defeating the claim for relief, proposes to make any disposition of or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for the purpose of restraining that other spouse or other person from so doing or otherwise for protecting the claim,
• if it is satisfied that that other spouse or other person has, with that intention, made a reviewable disposition and that, if the disposition were set aside, relief or different relief would be granted to the applicant, make an order setting aside the disposition.

Where relief has been granted by the court and the court is satisfied that the other spouse concerned or another person has, with the intention aforesaid, made a reviewable disposition, it may make an order setting aside the disposition.  An application under paragraph (a) shall be made in the proceedings for the grant of the relief concerned.

Interim Temporary Orders

Where an application for judicial separation or divorce has been commenced and has not yet been heard by the courts, certain temporary orders may be granted pending the proceedings. These include the following:

• Safety, barring or protection order if any spousal violence or threat exists (see the separate chapter)
• custody and access orders,
• orders in relation to the welfare of children.
• orders protecting the family homes,
• orders requiring periodic or lump sum maintenance for the support of spouses or children/dependents.

Set Aside

A transfer of assets which is intended to frustrate a claim for financial relief may be set aside by the court.  In judicial separation or divorce proceedings, the court may restrain a pending disposition or set it aside a disposition made.

A  disposition covers any transfer of property. If it is purchased by a bona fide purchaser for full value without notice, he will take the title. The transferor, however, will remain liable.

A disposition made within the three years prior to the application is presumed to be made with the intention of defeating creditors.  The onus is on the other spouse to prove the contrary.

The court may set aside a disposition if it is satisfied that the disposition was unreasonable and ought not to have been made.  If there is a disparity in what is paid relative to what should have been paid, the disposition may be set aside.  However, it will not be done readily.

In bankruptcy, dispositions made within five years of bankruptcy to certain connected persons, including spouses and children, may be set aside if made at an undervalue.

Information to be Given

Each spouse is entitled to have full and frank disclosure of all assets and income of the other party.  It is a precondition for the grant of divorce and judicial separation that it may only be granted where proper provision has been made for the spouses and children of either or both of them.

In an appropriate case, the court may put its own questions and need not rely on what is submitted by the parties.  This arises from the court’s duty not to grant a divorce or judicial separation unless it is satisfied that adequate provision is being made for the spouses and any dependent members of the family.

The court may make orders to furnish information. Court rules require each party in family proceedings, including divorce and judicial separation proceedings, to give details of their assets, income, liabilities and expenses.  The parties may generally inspect material and assets referred to in the affidavit of means.

A failure to produce documents or full documents where acquired may amount to perjury.  The general procedure for discovery and for further and better discovery are available.  If a party conceals an asset, the court may award cost and make adverse inferences.

Ancillary Orders

When a judicial separation or divorce is granted, then the following orders may be granted in the proceedings. There are detailed criteria and matters to be considered in making the order. They are dealt with later in this chapter.

Custody and access orders are usually made on the application of a spouse. In some cases, an application may be made on behalf of children.

See the separate chapter on the maintenance of spouses and children. A spouse or a person on behalf of dependent members of the family may apply for the following types of orders:

A periodic payment order; is an order that one spouse should pay to the other spouse or to a third party on behalf of dependent members of the family a specific periodic amount. The court may order that the payment be secured by assets owned by the spouse. The court may order that assets be transferred to a trustee to secure payment.

The periodical payment may be made for such period as may be specified. It may apply for the spouse’s lifetime; it ceases on the remarriage of the spouse, other than in relation to pre-remarriage obligations to which it relates. Where a spouse has remarried at the date of application, the order cannot be made.

Lump Sum Order

A lump sum order may be made, which may be payable in a single installment or in a number of installments. An installment lump sum may be secured on an asset in the same way as a periodic order.

Where payment in installments is ordered, an application can be made to vary the installments. The lump sum itself cannot be varied.

The lump sum may be made in respect of liabilities and expenses incurred before the application. A lump sum may assist in making a clean break between the

parties. A single payment may be ordered where there are considerable family assets and where the single payment makes longer provision. Although there is no clean break in terms of maintenance, a significant lump sum may go a certain distance in this direction.

Enforcement

The attachment of earnings order procedure available under general maintenance legislation is also available here. An application must be made, and the spouse, the subject of the order, must be entitled to make representations.

The spouse may, for example, give an undertaking to make the payments and the attachment of earnings order may be (for example) applied by the court, only if the undertaking is breached.

The court may make such orders in relation to custody and access as is appropriate. See the separate chapters on the guardianship and access of the children. The issue of guardianship and access will always be an ongoing matter in respect of dependent and underage children. The primary consideration is the welfare of the children. See separately, in relation to the criteria that apply.

Compensation

A financial compensation order may be made for a spouse or dependent member of the family in relation to the loss of a benefit or potential benefit as a result of judicial separation or divorce. This may arise from loss of pension or other benefits.

The order may be made where  the financial security of the spouse making the application (“the applicant”) or the dependent member of the family (“the member”) can be provided for either wholly or in part by so doing, or where  the forfeiture, by reason of the decree of divorce, by the applicant or the member, as the case may be, of the opportunity or possibility of acquiring a benefit (for example, a benefit under a pension scheme) can be compensated for wholly or in part by so doing,

The compensation order may, for example, require an ex-spouse to take out an insurance policy or assign an existing policy.

The compensation order may be granted instead of or as well as other orders. The court, in making a financial compensation order, must consider whether proper provision having regard to the circumstances exists or can be made for the spouse concerned or the dependent member of the family concerned by such orders.

The financial compensation order ceases to be effective upon the remarriage or death of the applicant/beneficiary spouse. Similarly, an order may not be made in favour of a spouse who has remarried.

See our separate sections on the rights of spouses on death, the legal right share and share in intestacy. This right may be displaced by a premarital agreement.

Variation of Orders

Orders which have been made may be varied, suspended or revived. Where a substantial lump sum has been granted with a view to a final settlement, the court would be reluctant to do so.

The orders that they be varied include the following.

• maintenance order,
• periodical payment order,
• lump sum by instalments (secured and unsecured)
• variation of a settlement
• occupation and sale of family home,
• division of proceeds,
• financial compensation order,
• pension adjustment order,
• preservation of pension entitlements order

The application can be made by either spouse or a person on behalf of the dependent member.  Where a spouse is deceased, the applicant may be made by a party with a sufficient interest in the matter.

Factors for Variation

An application for variation must be based on a significant change in circumstances.  There must be new evidence to warrant making a different order. If one spouse has made bad choices in terms of investment and lifestyle, these will not necessarily be made the responsibility of the other spouse.

The court has stated that one spouse is not the insurer of the other spouse. The court will consider whether it would unfair and unjust to ignore the change in circumstances.

A clause in a separation agreement providing for full and final settlement does not prohibit applications for variation.

A consent order may be set aside if the parties have not disclosed the full facts.

Orders under maintenance made in a judicial separation may be varied on a subsequent divorce.