Divorce Financial Orders
When you get a divorce in England or Wales, and you have received the Decree Absolute, your marriage has legally ended but you could remain tied to your ex-spouse financially; this is because finalising matrimonial finances is not part of the divorce process.
In order to cut financial ties with your ex-spouse properly, you must obtain a Financial Order from the Court. Without a Financial Order your ex may be able to make a financial claim against you, at any point in the future – there is no cut-off date for this application.
A Divorce Financial Order will state how your matrimonial assets are to be divided, and make the division of assets legally binding. Even if you have no assets, it is important to bring this financial relationship to an end with a “clean break”, especially where there are debts in order to prevent future claims. This will also protect any new family in the future.
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For initial advice please get in touch with our Divorce Solicitors.
How to Get a Divorce Financial Order
When both of you agree on how the assets are to be divided – A Divorce Solicitor can write the details into a Financial Consent Order and submit this and other forms to the Court with the Court application fee. You will not need to go to Court for it to be approved. Provided that a Judge considers that the division of assets is “fair” to both people, the Financial Consent Order will generally be granted.
When you cannot agree with how the assets are to be divided without help – Your choices are:
- Solicitor Negotiation
You may need to go to Court as a last resort where you can agree a deal with help from a Judge. If you still cannot agree, a Judge will decide how your matrimonial assets will be divided, then a Financial Court Order will be made.
There are lots of opportunities to agree an Order during the Court process before the Judge steps in. However, the Order will be in “full and final settlement” once made which means neither you nor your ex can make any changes to it and you will be legally bound to the terms. It is therefore very important that you get this right as you and/or your children will have to live with it.
Our Divorce Solicitors can deal with your ex or their Solicitor in order to get you a fair divorce settlement, whichever route you require.
Divorce Financial Settlements
It does not matter what your financial situation looks like, you still need to get a divorce settlement. You might own a property and have some savings in the bank, or you might be a high net-worth individual with substantial capital assets and property overseas. Either way, our Divorce Solicitors can help you.
We can assess the financial circumstances of both you and your ex before suggesting what a reasonable settlement might look like. Crucially for many people is what will happen to the family home, which we can advise you on. We can negotiate directly with your ex or their Solicitor so that you do not have to.
If a decision cannot be reached, we can help you find a resolution that suits your circumstances, guiding you through the steps necessary to finalise your financial settlement, which usually includes mutual financial disclosure.
Once a divorce financial settlement has been agreed, you will make the arrangements legally binding by having the Order approved by the Court. Our Divorce Solicitors can apply to the Court on your behalf, or guide you through the Court process to get the Order if that is necessary.
There are various Court Orders that can be made during divorce including:
A Consent Order is where you agree with your ex to the outcome and sets out how your assets and debts are to be divided. The Order contains a clean break clause which severs the financial ties between you. This means that neither of you can re-open the terms of the Order or make future claims against each other (this does not include a variation of a Maintenance Order).
Clean Break Order
Clean Break Orders are for couples who do not have any assets to divide and simply dismiss all financial claims you both have now and in the future. They provide a clean break, dismissing your rights to request further financial provision in the form of capital and income, including after death of your spouse. This will protect any future wealth or assets you acquire and will also prevent claims against your estate from a former spouse which could cause problems for your new family.
Pension Sharing Order
Pension Sharing Orders establish how each person’s pensions are to be shared. Often these apply when one person earns significantly less than the other, or gave up their career to care for the children which would severely impair income on retirement. The state pension is insufficient to meet the needs of most and therefore an order equalising pension income is essential to consider.
A Freezing Order ‘freezes’ someone’s assets, meaning they cannot be disposed of or transferred off-shore. Freezing Orders are useful if there is any concern that one person might try to move their assets out of reach during the negotiation of a divorce financial settlement.
Mesher Orders defer the sale of the family home until a specific time. This might be the youngest child’s 18th birthday, or some other trigger event. After this, the property must be sold and the proceeds split as per the agreement if a buy-out is not possible. There will be no need to return to Court for an Order for sale as it will already be written in.
These Orders are necessary where you have a Financial Order but your ex fails to comply with the terms. Usually costs can be claimed under these types of Orders due to the fact that you have been forced to attend Court by your ex’s conduct.
Variation of a Maintenance Order
If a Maintenance Order is in place and you want to amend it, you need to apply for a Variation of Maintenance Order. Either person can make this application, regardless of whether you pay maintenance or you receive it. You can ask for the amount or the duration of payments to be altered but you must have a very good reason. Our Divorce Solicitors can help you assess your case as to whether it will be successful.
Non Molestation Order
A Non Molestation Order are used when there is domestic violence or a threat of it. They are not just limited to divorce situations and can be used against family members or co-habitees/unmarried couples. They prevent a person from using or threatening violence or verbal abuse towards you and your child, and from pestering, harassing and intimidating you.
An Occupation Order is also used to exclude someone from your property when there is domestic violence or a threat of it. Again, they are not just limited to divorcing couples and can be used against co-habitees/unmarried couples if they have a financial interest in the property. These Orders outline who can and cannot live or “occupy” your family home.
Setting aside a Court Order
Although rare, there are times when an original Court Order is ‘set aside’, meaning it is cancelled. Normally this happens if:
- Assets were not fully disclosed when the Court Order was made
- Assets were misrepresented or fraudulently disposed of when the Court Order was made
- One person was placed under undue influence to agree to the Court Order
- Subsequent events have invalidated the Court Order
If any of the above apply to you, please contact our Divorce Solicitors straight away. We can advise whether you have any prospect of succeeding in cancelling the original Court Order in light of new information. If so, we can apply to the Court to have the Order set aside, ensuring you receive a settlement that reflects the true nature of the situation.
If you got married abroad, you have a foreign prenuptial agreement, or you live abroad (or your ex lives abroad and wants to divorce there) - you might wonder what this means for your divorce and your children. Can you can actually divorce in England and Wales? Different countries have different rules on domicile and habitual residence, and matters can become very complicated, very quickly around jurisdiction.
Our Divorce Solicitors can explain your options, recommending the best approach in your circumstances. Even if your divorce contains an international element, we can manage the entire divorce process for you.
Other Services Include
Along with finalising your divorce financial settlement and obtaining Divorce Financial Orders, our Divorce Solicitors can also help you with:
- Second Opinions (including are you paying too much with your current Solicitor)
- Family home disputes (unmarried)
- Wealth protection and retention (“ring-fencing” of assets)
- Business advice/bankruptcy advice
- Family Trusts
- Mediation and arbitration advice
For initial advice call our Family Law & Divorce Solicitors
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