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.
For initial legal advice get in touch with our Family Law and Divorce Solicitors
How to Get a Divorce Financial Order
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 legal advice please get in touch with our Divorce Solicitors.
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 a 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 legal advice call 08002605010 or request a callback.
Divorce Finances and Property FAQ
- How Will the Court decide Who Gets What?
- This is a complicated topic, but the Judge will try to divide your assets fairly between you. The Judge will take both your needs into account and especially the needs of your children. If money is short, needs will be the most important factor.
- Our Divorce Solicitors can help you to get a better understanding of what this means for you personally and give you individual advice.
- Can I Stay in the House?
It really does depend on your circumstances, the value of the house and the amount of mortgage. In most divorce cases where there are children, the Court will say that the house needs to be kept (if possible) until they are grown up. The person who is caring for the children after the separation can usually expect to stay there until then. The former partner may need to wait until then to get any payment for their share in the house.
- Will I Have to Sell My Business?
Generally speaking the Court will not expect you to sell a business which is providing the income that you and your family live on. However, the business will have to be valued, and the value will be taken into account when other assets are being divided.
- How Long Will it Take to Agree a Financial Settlement?
- It varies quite a lot, depending on how much you can agree on.
- Some people agree everything at the outset. It might take three or four months for the Court to approve the arrangements, called a Consent Order. This is because a Consent Order can’t be made until a Decree Nisi has been issued.
- Other people have to go through the Courts because they can’t agree on everything. As a rough guide, it probably takes 9 to 12 months to go through the Court process from beginning to end, but it can take longer.
- Quite often, an agreement is reached partway through the Court process, often at the first Court appointment. This is usually about 3 or 4 months after the Court process has been started.
- What Can I Do if My Former Partner is Not Paying any Maintenance?
- Firstly, if you have children you should contact the Child Maintenance Service.
- Secondly, you can apply to the Court for maintenance yourself. The Court will decide the amount based on how much money you need and how much your former partner can afford to pay. If they have a modest income, the Court may decide that your former partner can’t afford to pay any more than the Child Maintenance Service has calculated.
- Lastly, consider if you could get other help like tax credits or benefits
- I’ve Inherited some Money. Do I Have to Share it with My Former Partner?
- Money you’ve inherited is often treated differently from other assets accumulated during your marriage.
- The Court will want to know how much you inherited, when, and how you have been using the money.
- There’s no assumption that you’ll have to share your inheritance particularly if you received it in the later part of your marriage, or even after you separated from your former partner. You should be prepared that you may need to use this money.
- My Former Partner Cheated on Me and Wanted the Divorce. Does that Make a Difference?
- Although you probably feel strongly about this, you have to be realistic. It usually makes no difference at all. The Court is not interested in finding out why your marriage broke down, or trying to apportion responsibility.
- In limited situations, the Court can take account of “misconduct” when it looks at questions of property and finance, but usually it will only make a difference if you can show your former partner was exceptionally reckless with money, or in cases of truly extreme violence.
- Who Pays for the Divorce Legal Fees?
- The Court can make an Order that one person should pay the other’s divorce legal fees. Legal fees can be expensive so it’s important to get legal advice about your own situation.
- The general rule is that the Court will not order either person to contribute towards the other’s legal fees for a dispute about money because of a divorce. Instead, the Court will want to know how much each of you has spent on legal fees, and will try to take that into account in dividing up other assets.
- Think carefully about your divorce legal fees from the outset, and how you will pay them. We try to make this as easy as possible by being as clear as we can how much you’re likely to spend.
- There are important exceptions to the general rule. For example, if you have to make an application to the Court for an urgent Maintenance Order or for an Injunction to stop your former partner from getting rid of assets, then Court Orders for payment of legal fees are quite common.
- Will I have Access to My Partners Pension after Divorce?
- Pensions are an important asset and often one of the largest assets apart from the family home. Retiring may be the last thing on your mind at the moment but it’s important to think about pensions carefully.
- Generally pensions are looked at as a separate class of assets from houses, savings, and other types of capital because the money in the pension scheme is rarely available immediately as a cash sum.
- The Court will be interested to know what pension you and your former partner have each accumulated to date. The Court can then adjust the pensions between you either using a Pension Sharing Order or Pension Attachment Order. Alternatively, the Court could decide to take account of their bigger pension by giving you a larger share of the other assets.
- It’s a complex subject, and you should get individual advice about your own situation from a specialist Divorce Solicitor.
For initial legal advice call our Family Law and Divorce Solicitors
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