How a Divorce Financial Settlement Works

Author:
Jane Auty
Partner, Family Law and Divorce Solicitor
Date:
21/05/2020

A divorce financial settlement is a legal document which sets out the financial arrangements between you and your ex-partner. In England and Wales to be effective, it must be made into a legally binding Court Order, known as a Consent Order.

Many couples going through separation need help negotiating the terms of their divorce financial settlement. This is understandable, as communication between you may be strained, but you’ll both want to protect your best interests.

Our Divorce Solicitors can help you reach a fair divorce financial settlement. This begins with negotiation and Mediation. If this doesn’t work, we can help you take your case to Court where a Judge will become involved. First to try to help you reach an agreement, and if that is not possible, to make a court order himself setting out how your finances should be dealt with.

It always costs more money and takes longer to get a divorce when the case goes to Court. But around 90% of divorce cases in England and Wales don’t go to Court, and for these cases we offer a Fixed Fee Divorce and Consent Order.

For initial advice get in touch with our Divorce Solicitors.

Call us on 08002605010 or request a callback and we will help you.

What is a Divorce Settlement? 

When you get a divorce, you’ll need to agree what happens to your finances. The details of this agreement are set out in a legal document known as a divorce settlement. It can cover things such as:

  • What happens to the family home
  • How assets and debts should be shared
  • Child maintenance payments

A divorce settlement only deals with the financial side of your divorce. Any childcare arrangements are dealt with separately.

Getting a Divorce Settlement 

You can agree a divorce settlement at any stage of your divorce proceedings. Ideally, this should be done before the Decree Absolute is issued. In other words, before the divorce is made final. You cannot have it ratified by the court however and made binding until decree nisi has been pronounced and this can often be some time after the agreement is reached.

The way in which you reach a divorce settlement will depend on the level of agreement between you and your ex-partner.

If You Agree to Divorce 

Some couples getting a divorce can decide what happens to their finances, without having to involve a Divorce Solicitor. If this is you, we still recommend that you make the agreement legally binding. To do this, you’ll need to apply to Court for a Consent Order.

The Courts will check that your divorce settlement is fair and reasonable to each person. If a Judge is satisfied, a Consent Order will be issued. This is essential, because it settles the financial ties between you. Ideally, you should be looking for a clean break so that neither of you have any form of ongoing financial responsibility to the other, although this is not always possible.  Otherwise, your ex could ask for further financial provision at any time in the future.

This is very important, so it’s worth emphasising again: a divorce does not end your financial obligations towards your ex. If you want to end this commitment, you must turn your divorce settlement into a Consent Order.

Our Divorce Solicitors can apply for a Consent Order on your behalf. We can represent you, meaning you don’t need to go to Court in person. 

If You Don’t Agree to Divorce

If you can’t agree on your finances, and as your future financial position is at stake, it’s best to get your own Divorce Solicitor. Your Simpson Millar Divorce Solicitor will ask your ex-partnerspo to disclose details of all their financial assets. This information will be used to determine what a fair divorce settlement would look like in your case.

Your Divorce Solicitor will then negotiate directly with your ex (or their Solicitor) to reach an agreement. We’ll work in your best interests, ensuring you get the financial assets you’re entitled to.

If negotiations don’t work, the next step is to try Mediation. This is now compulsory for separating couples who can’t agree on a divorce settlement, unless it’s not appropriate – for example, there’s a history of domestic violence.

If negotiations and Mediation are unsuccessful, the final option is to apply to Court for a Financial Order. It is then up to a Judge to decide on your financial arrangements. This decision will be based on what the Judge feels is a ‘fair and reasonable’ outcome for each person. The Court will then issue a Consent Order, making the arrangement legally binding.

What is a Fair Divorce Settlement?

When dividing your matrimonial assets, the Judge will aim to decide what is fair and reasonable to both parties and meets their needs. This won’t necessarily be a 50/50 split. A decision is based on each person's circumstances. The Judge will consider things like:

  • Your earning capacity
  • Whether you are primarily responsible for your children
  • Whether you are financially better off than your partner
  • The length of your marriage
  • Your age
  • Your role in the marriage

Prenup Agreements

If you signed a Prenuptial Agreement before you got married, then you will have already decided what should happen to your finances, if you get divorced. However, Prenups aren’t legally binding in England and Wales. They are often taken into consideration by the Courts, but they won’t always be upheld.

Your Divorce Solicitor can review your Prenup and advise what the best course of action is. Just because a Prenup is in place, does not mean that you have to accept the terms. You may be able to request additional financial provision, especially if your circumstances have changed – for instance, you have had children since signing the agreement.

The Right Divorce Settlement for You

If you’re going through a divorce, we can help you. Our Divorce Solicitors know how important it is to reach a divorce settlement that protects you and your family in the long term. We’ll work on your behalf to achieve your desired outcome.

For initial legal advice call our Family Law and Divorce Solicitors

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