The guiding principles with regard to acceptance of offers in financial remedy proceedings were set out in Xydhias v Xydhias. In Xydhias, Thorpe LJ held that ordinary contractual principles did not apply to ancillary relief applications, and settlement agreements did not give rise to enforceable contracts. Accordingly, it was always within the court’s discretion to decide whether the agreement was fair. However, after elaborating this general principle Thorpe LJ further commented on the weight which should be attached to negotiated agreements, as follows (at paragraph [693]): ‘The court has a clear interest in curbing excessive adversariality and in excluding from trial lists unnecessary litigation. A more legalistic approach … only allows an inconsistent or manipulative litigant to repudiate

The query does not state whether the litigant in person applying on notice for the final divorce order is the applicant or the respondent in the divorce application. However, it is assumed initially for the purposes of this answer that the person applying for the final order is the respondent in the divorce application who has made an application on notice under Family Procedure Rules 2010, SI 2010/2955, 7.20(2)(c). The grant of a final order on the respondent's application is a matter

Payments into court You should pay money directly into the Court Funds Office if: • you’ve been ordered to make a payment to settle a court case • you offered to settle in full before the case started, but it wasn’t accepted and you want to use a ‘defence of tender before claim’—for further information, see Commentary: Defence of tender before claim: Atkin's Court Forms [261]. See also how the Court of Appeal applied the rule in RSM Bentley Jennison v Ayton discussed in News Analysis: The common law defence of ‘tender before action’ (RSM Bentley Jennison v Ayton) • you have to refund an overpayment It should be noted that in April 2007, the requirement for payment into court for all defendants in relation to Part 36 offers was abolished. For more information, see guidance: Pay money into the Court Funds Office. Settlement offers If you

A non-resident parent is obliged to pay to the resident parent in respect of a qualifying child maintenance calculated by the Child maintenance Service (CMS) by reference to the gross income of the former. The CMS is a statutory body which works out, collects and pays out child maintenance payments as is necessary. Where the CMS is tasked with working out child maintenance, it will determine the yearly gross income of the paying parent, and convert it to a weekly figure, then apply a formula based upon that gross weekly income. Various types of different income may or may not be taken into consideration when calculating the gross weekly

The appropriate level of child support that a non-resident parent should pay the resident parent in respect of a qualifying child is calculated by the Child Maintenance Service (CMS) with reference to the non-resident parent’s gross income. How the gross income of the non-resident parent is to be calculated is explained in the Child Support maintenance Calculation Regulations 2012 (CSMCR 2012), SI 2012/2677. The gross weekly income of a non-resident parent for the purposes of a calculation decision is a weekly amount determined at the effective date of the decision on the basis of either historic income or current income. Historic income is generally relied upon since to rely on current income, the

The Child Maintenance Service (CMS) operates a statutory formula to calculate the level of child maintenance, based upon a percentage of the gross income of the paying parent. A number of factors, including whether the paying parent is in receipt of benefits and the number of nights that the child stays with them, are factored into the formula. The Child Support Act 1991 (CSA 1991) (as amended), and associated regulations made thereunder, is the operative statutory framework. As the CMS uses the gross income reported to HMRC to calculate child maintenance, whether a redundancy payment counts as income will depend upon its tax treatment. Redundancy payments are not treated

What is set-off? Set-off comes into being where parties have financial liabilities to one another. A right to set-off allows parties to deduct one party’s liability from the other leaving an outstanding balance to be paid by the other affected party who will be indebted to the other. There are five main types of set-off: • legal set-off • equitable set-off • contractual set-off • insolvency set-off • bankers’ set-off For information on the different types of set-off, see Practice Note: Types of set-off. In the scenario in this Q&A, it would appear legal set-off applies. This type of set-off can be used as a defence to civil proceedings and can only be used when the court action has not reached a conclusion. This type of defence allows the debtor to set-off monetary liabilities that may or may

In civil litigation, the court has a discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid (CPR 44.2(1)). The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order (CPR 44.2(2)). Costs can be assessed either summarily, whereby the costs are assessed by the judge who has heard the case or application then and there; or by detailed assessment, which

A ‘pension arrangement’ is defined in section 25D(3) of the Matrimonial Causes Act 1973 (MCA 1973) as including an occupational pension scheme, a personal pension scheme, a retirement annuity contract and an annuity and a pension that is in payment. In accordance with MCA 1973, ss 25B–25D, a pension attachment order is an alternative arrangement to a pension sharing order in relation to a pension arrangement and can be used where there is a decree of judicial separation, where a pension sharing order cannot be used, or in cases of divorce or nullity. Pension attachment orders require part, or all, of a party’s pension income to be paid to their ex-spouse. This can be made as a tax-free lump sum, the income payable on taking pension benefits or a lump sum

Pension sharing is the method by which an existing (shareable) pension arrangement is split and divided between the parties following divorce, nullity or dissolution proceedings. It is not a financial provision or property adjustment order but a separate species of order. Section 24B(3) of the Matrimonial Causes Act 1973 (MCA 1973) says

Since 2000 (2005 for civil partnerships) the courts have had the power within financial remedy proceedings to make a pension sharing order. Such an order in effect provides that a pot of money, usually expressed as a percentage, is scooped out of one party's pension pot, and deposited into another pot for the benefit of the other. This has the significant advantage of creating in effect a separate pension, which the receiving spouse is interested in absolutely; unlike a pension attachment or earmarking order, the pension sharing pot is a separate and independent asset. See Practice Note: Pension sharing orders. There are a number of formalities that need to be complied with when the court makes a pension sharing order. The mechanics of the pension sharing order are contained within an annexe to the order itself (a pension

Where a pension went into payment before the parties met, the resultant monthly pension will, on the consideration of a financial remedy application, constitute income for purposes of section 25(2)(a) of the Matrimonial Causes Act 1973 (MCA 1973). Any pension commencement lump sum taken when the pension went into payment will count as a financial resource with the meaning of MCA 1973, s 25(2)(a) insofar as it remains unspent. If this had been retained separately unmingled with matrimonial assets, it would be possible to argue, in a sharing case, that this was non-matrimonial. However, proceeding on the basis this is a needs case,