Variation of financial remedy orders

The term financial remedy is defined in the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 2.3 and encompasses proceedings for a wide range of orders, see further Practice Note: Financial proceedings—orders that can be made by the court — What are financial remedies and financial orders?.

Not all orders made in such proceedings are capable of variation. In very broad terms, almost no orders of a capital nature can be varied whereas income orders generally can. Nevertheless, in addition to provisions enabling the variation of specific types of order, the law recognises some limited ways in which orders that are normally incapable of variation may be altered or discharged in restricted circumstances.

Financial orders—orders the court can vary

The term, financial order, refers to the orders the court can make in proceedings for an order of divorce/dissolution, nullity or (judicial) separation. Some of these are capable of variation, including orders for maintenance pending suit/outcome of proceedings, interim maintenance, periodical payments, legal services and lump sums by instalments, in addition to orders for sale, provided the underlying capital order remains unchanged. In general, capital orders

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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