A divorce financial settlement is an arrangement under which a couple’s assets and financial affairs are separated upon divorce. In England and Wales, the act of divorce itself doesn’t put an end to the financial relationship between you and your partner. The property and money issues (divorce financial settlement) in a divorce matter can either be settled with mutual agreement in the form of a consent order approved by the divorce court or through an application for divorce financial settlement order made by a divorce court.

Obtaining a financial settlement when you are divorcing your spouse is important because outstanding financial claims may come back to disrupt your lives even years after your divorce has been finalised. This is because in England and Wales, even when you’re divorced, you still retain the ability to make financial claims against your ex and vice versa, and there’s no time limit for making these. This is why it’s crucial to put your financial affairs in order and have a binding court order stating what your financial arrangements with your ex husband or wife are.

Contents Table

Specialist Divorce Settlement Solicitors
What Is Divorce Financial Settlement?
When Can I Apply For Financial Settlement?
How Are Assets Split?
The Matrimonial Home
Business Assets
Assets Held In A Trust
Pension
Overseas Assets
Life Insurance Or Endowment Policies
Inheritance
Court Procedure For Divorce Financial Settlement
How Much We Charge?
How Much Is The Court Fee?
Need Help? Book An Appointment
Frequently Asked Questions (FAQs)

Specialist Divorce Settlement Solicitors

The divorce lawyers at Sunrise Solicitors are specialists in divorce financial settlement matters. Our expert team of divorce financial settlement solicitors have wealth of knowledge and experience of successfully handling divorce financial settlement matters.

Getting divorced in England & Wales and need legal help and assistance with divorce financial settlement? Contact our expert team of divorce financial settlement solicitors in London, Manchester or Birmingham for fast, friendly, reliable and fixed fee legal services for your divorce financial settlement application. Ask a question to our expert divorce financial settlement solicitors for free divorce settlement advice online by completing our enquiry form and one of our divorce settlement solicitors will answer your question as soon as possible.

What Is Divorce Financial Settlement?

A divorce financial settlement is an arrangement under which a couple’s assets and financial affairs are separated upon divorce. "Ancillary relief" is the term used by lawyers to describe all orders of a financial or property nature or that relate to pensions that a Court can make following divorcejudicial separationDissolution Of Civil Partnership, or nullity proceedings. 

When Can I Apply For Divorce Financial Settlement?

After the family court has issued Decree Nisi and after both parties have exhausted the mediation process (where applicable), an application for divorce financial settlement can be made to the court.

You can normally get a financial settlement any time during the divorce proceedings.  However, you can apply for financial settlement even after the divorce has been finalised. It’s advisable to apply for financial settlement before your partner or you have remarried.

How Are Assets Split In Divorce Financial Settlement?

The judge has the final decision on how your assets will be split. The key factors which will be taken into account in an assessment of how any capital should be divided, as well as whether or not income should be shared, are as follows:

  • Children – their financial needs as well as other factors that may affect their future wellbeing;
  • The financial needs of you and your spouse;
  • The length of the marriage and your respective ages;
  • The current earnings of each party and the potential earning capacity of each party now and in the future;
  • Health issues affecting either you, your spouse or any children;
  • The assets of each party including pensions;
  • The standard of living you have had during the marriage;
  • The financial and non-financial contributions (such as caring for children and running the house) that each of you has made to the marriage;
  • It is only in very exceptional circumstances that the conduct of you and/or your spouse is relevant when dealing with financial matters.

The judge is only likely to consider a 50/50 split if you have been married for a long time.  The main consideration is the needs of those involved, including children. If, after consideration, the judge thinks that one of you has greater need than the other, the assets can be split unequally.

If, for example, two young people divorce after a brief, childless marriage, it might be fair for them to each walk away with the assets they brought into the marriage, with neither paying the other maintenance.

On the other hand, suppose a couple have been married for 30 years, with the wife bringing up the children and looking after the home while the husband worked. A fair financial settlement might award the wife half the joint assets, including half her husband's pension entitlement and a significant proportion of her husband's income until he retires. This would reflect the value of the wife's contribution to the marriage as a homemaker and the fact that she would not now be in a position to suddenly start earning a large income.

If there are children, their needs - including maintenance - are dealt with separately as a priority.

The Matrimonial Home & Divorce Financial Settlement

The family home will almost always be an asset of the marriage and will therefore be included in the financial negotiations. Divorce settlement negotiations start from the point of a broad equality in division of assets. If one spouse wishes to retain the family home, they will need to have enough other assets to be able to offset the value of their spouse’s share of the home by transferring assets of that value to their spouse.

If not enough assets are available to achieve this, then the family home may have to be sold so that the equity contained within it can be split.

In some situations, particularly if there are children, it can be possible to be more creative, for example, one spouse could stay in the family home with the children, and the spouse leaving the home could retain a defined financial interest in the property, which they will realise at an agreed future date.

Business Assets & Divorce Financial Settlement

A family business is often looked at as something which produces an income - that can be used to provide maintenance - rather than just as an asset to be shared or sold.

There is no presumption that the individual who has built up the business has a greater claim to the business assets. The other partner's contribution to the marriage, for example, by looking after the home and children, might be considered to be equally large. Depending on the circumstances, this might mean that each partner could claim entitlement to about half the value of the business.

In many circumstances, it is possible to agree a settlement that allows the business to continue. For example:

  • one partner could retain ownership of the business and pay maintenance out of the business income;
  • the individual who will retain ownership of the business could borrow against the value of the business to provide a lump sum for the other partner;
  • the business could be split into two separate businesses.

Where possible, courts try to avoid ordering a financial settlement that results in the break-up or liquidation of a business.

Assets Held In A Trust & Divorce Financial Settlement

Divorcing parties must disclose any trusts from which they benefit or expect to benefit, and the value of these benefits can be taken into account. There can be a grey area where the trustees of the trust have discretion over who will benefit.

If one of the spouses in a divorce has previously placed assets into trust, these assets might also be taken into account. Clearly, this will be the case if the spouse who put the assets into trust is a beneficiary of the trust. It may also be possible to make a claim against the trust if it can be shown that the assets are still under the settlor's control or that the settlor created the trust once the marriage started to break down to shelter assets from a claim.

Trust law is complex. You should take advice if you wish to place assets into trust or discuss what claim you might have against assets held in trust.

Pension & Divorce Financial Settlement

Your pension is a marital asset, like your home and other assets. The value of your pension can be taken into account in deciding a fair settlement. Practical solutions can include:

  • offsetting the value of one spouse's pension fund by transferring a lump sum, or other assets, to the other spouse;
  • splitting the pension fund into two separate pension funds, one for each spouse;
  • arranging that when a pension comes to be paid, a proportion of it is paid to the other spouse.

Overseas Assets & Divorce Financial Settlement

Assets held overseas can be taken into consideration in the same way as any other assets. In practice, a spouse may seek to hide overseas assets or transfer assets overseas to make them more difficult to recover. If you suspect that your spouse is doing this, take immediate legal advice.

Life Insurance Or Endowment Policies & Divorce Financial Settlement

Life insurance and endowment policies are taken into account when agreeing a fair settlement. You should agree how each policy will be handled, whether premiums will continue to be paid for regular contribution policies, and whether the beneficiaries of any life insurance cover will be changed.

You may choose to retain individual policies or to sell (or surrender) them. Any policies in joint names will normally be sold or transferred into one individual's name. Early surrender of a policy may result in a sharp fall in the expected value of the policy; any surrender, sale or transfer may also have tax consequences. Take advice on the best option in your circumstances.

Inheritance & Divorce Financial Settlement

A judge will not necessarily include an inheritance in your financial settlement, but will consider the needs of those involved. If you received your inheritance while you were married, the courts are more likely to include it as part of the settlement, but if it was received after your marriage broke down, they are more likely to exclude it.

Court Procedure For Divorce Financial Settlement

The divorce financial settlement proceedings are very much Court-controlled. The Court will impose timetables for compliance with its orders and the parties will usually be required to personally attend all Court hearings. There may well be costs consequences for failing to adhere to timetables, to obey Court orders and to attend hearings.

Following is the step by step process for divorce financial settlement:

Step 1: Notice of Application - Form A

A divorce financial settlement application is started by filing with the Court Form A application ('Notice of an application for a financial order'), accompanied by a cheque in the sum of £255 without consent and £50 with consent, being the court fee payable.

Step 2: First Directions Appointment (FDA) date

The Court then sends each party a sealed copy of the Form A, accompanied by both a Notice of First Appointment (Form C) and a Notice of Response to First Appointment (Form G). Form C is the most important of these because:

  • It contains details of the date and time of the First Appointment (that will be in 12 to 16 weeks' time);
  • It contains the timetable for the case up to the initial hearing date of it (the "First Appointment"). This timetable provides the dates for the parties to file with the Court and to exchange with each other:
    • A Statement of Information about their financial circumstances (known as a Form E) no later than 35 days before the First Appointment;
    • A concise statement of the apparent issues between the parties;
    • A chronology;
    • Either a questionnaire setting out the further information and documents each requires from the other, or, a statement that no such information or documents are required;
    • A completed Notice in Form G, stating whether the party will be in a position at the First Appointment to treat that hearing as a Financial Dispute Resolution hearing ("FDR").
  • The Form C also provides that an estimate in Form H of any legal costs incurred by the party be produced to the Court at the First Appointment and a copy supplied to the other party.

Step 3: Financial statement - Form E

Each party to the divorce financial settlement completes a Form E (Financial Statement) and sends the same to the court at least five weeks before the First Directions Appointment (FDA). Copy of the form E is also sent to the other party.

Step 4: First Directions Appointment (FDA) Documents

The following documents are filed 2 weeks before the First Directions Appointment (FDA):

  • A concise statement of issues;
  • A chronology of events;
  • A questionnaire to address issues arising from the Form E;
  • A Form G, through which you tell the court whether the FDA meeting can be combined with the Financial Dispute Resolution (FDR) meeting. Typically the FDR meeting takes place after the FDA meeting.

Step 5. Legal Costs Incurred By Each Party- Form H

Each party completes and sends the court a completed Form H just before the FDA meeting, listing any costs they have incurred.

Step 6: First Directions Appointment (FDA) Meeting At Court

The first hearing of a divorce financial settlement application is termed "The First Appointment". The First Appointment is a directions hearing that has to be attended personally by both parties unless the court orders otherwise. The objectives of the First Appointment are to define the issues in dispute between the parties and to save costs. The hearing takes place before a member of the judiciary called a "District Judge" who must determine:

  • The extent to which any questionnaires served by the parties seeking further information must be answered; and
  • The documents that must be produced and to give directions for the production of such further documents as are necessary.

The Judge must also give directions about such matters as:

  • The valuation of assets, most usually the matrimonial home;
  • The obtaining and exchanging of expert evidence, most usually with regard to the value of pension assets, if required;
  • The evidence to be produced by each party; and
  • The preparation of further chronologies or schedules (where appropriate).

It is assumed that the District Judge does decide that an FDR is appropriate. It is possible for the court to treat the First Appointment as an FDR. It may be remembered that the Form G can be completed accordingly. However, experience is that few First Appointments are treated as FDRs. The reasons for this include:

  • That there are usually outstanding issues regarding the valuation of the parties' assets, particularly the former matrimonial home;
  • The replies to the parties' respective questionnaires and requests for documentation are required before negotiations can take place;
  • An insufficiency of court time. The majority of courts list First Appointments with a time estimate of 30 minutes and FDR's for one hour, this with a requirement that the parties and their advisors attend an hour before the actual FDR for the purposes of negotiations and in order to narrow the issues between them.

Step 7: File Proposals

Both sides answer questionnaires, prepare evidence, and submit proposals to the court for the divorce financial settlement. Both sides also submit a second Form H, listing updated costs.

Step 8: Financial Dispute Resolution (FDR) Hearing

The second of the three most likely court hearings in respect of an ancillary relief application is the Financial Dispute Resolution ("FDR"):

  • The FDR appointment must be treated as a meeting held for the purpose of discussion and negotiation.
  • Both parties must personally attend the FDR unless the court orders otherwise.
  • The Judge or District Judge hearing the FDR appointment must have no further involvement in the case, other than to conduct any further FDR appointment or to make a consent order if agreement is reached, or to make a further directions order.
  • Not later than 7 days before the FDR appointment, the Applicant for ancillary relief must file with the Court details of all offers, proposals and the responses to these.
  • This includes any offers, proposals or responses that are made wholly or partly "without prejudice" (that is, usually privileged from disclosure to the Court).
  • At the conclusion of the FDR appointment, any documents filed with the Court under point 4 above and any filed documents referring to them must be returned to the party filing them at his/her request and not retained on the Court file.
  • Parties attending the FDR appointment must use their best endeavours to reach agreement on the matters in issue between them.
  • The FDR appointment may be adjourned from time to time.
  • At the conclusion of the FDR appointment, the Court may make an appropriate Consent Order (if the parties have agreed terms of settlement) but must otherwise give directions for the future course of proceedings, including, where appropriate, the filing of evidence and fixing a final hearing date.

Experience has been that few cases settle at an FDR appointment. There are a number of reasons for this including:

  • The fact that some cases simply seem incapable of being settled by agreement. They require judicial determination;
  • In other cases the observations made by the Judge or District Judge with regard to the bases for settlement of a case do not find favour with one, other or even both of the parties;
  • Some parties, quite understandably, want more time to consider decisions that, once made, could have profound repercussions for their futures.

It is, however, important to remember that no guillotine falls with regard to negotiations between the parties following the FDR appointment. The parties can continue to negotiate up to the time of their Final Hearing, if indeed there is one.

Step 9: Further Proposals

The negotiations continue between the two sides, including revised proposals for settlement that are sent to the court and to the other party.

Step 10: Final Hearing

"Final hearings" probably only occur in some 10% of cases involving an application for ancillary relief. If a final hearing is necessary, in addition to listing the matter for such, the Judge dealing with the case at the FDR stage is likely to make what is known as an "order for directions". Typically such an order will require the parties to:

  • File (with the Court) and exchange (with each other) what are termed "narrative" or "Section 25" (of the Matrimonial Causes Act 1973) statements. That legislation contains details of the matters to which the Court is to have regard in deciding how to exercise its powers when dealing with ancillary relief applications, first consideration being given to the welfare, while a minor, of any child of the family who has not attained the age of eighteen;
  • Provide updating of the financial disclosure previously made by them, whether in their respective Financial Statements (Forms E) or subsequently. It should be borne in mind that a period of 9 to 12 months may have elapsed between the filing and exchange of Forms E and the date of the final hearing;
  • Produce up to date valuations of assets such as the former matrimonial home, business interests, pension funds and similar items.

Recent experience is that a minimum of two days will be allocated to the final hearing of a case, even where the issues between the parties and the extent of their assets are relatively limited. At a final hearing, the parties will each give evidence on oath that is subject to cross-examination. There is also likely to be a detailed consideration of the documentation produced by both parties. Generally, the parties' cases will be presented by barristers (or "counsel") who will both represent their respective clients and make representations on their behalf.

Depending upon matters such as the complexity of the case, judgment may not be given at the conclusion of the hearing but "reserved" to be given at some subsequent date.

How Much We Charge For Divorce Financial Settlement?

Our Fixed Fees For Divorce Financial Settlement

Our fixed fees for various stages of the divorce process involving financial settlement proceedings are given in the table below. The agreed fixed fee will be dependent on the volume of work involved in the case and the complexity of the matter. Please be advised that our fixed fees do not cover the court fees and the Barrister's fees.

Casework Stage Fixed Fee Range (Acting For The Petitioner) Fixed Fee Range (Acting For The Respondent)
Uncontested Divorce From £600 + VAT To £1,200 + VAT From £500 + VAT To £1,000 + VAT
Preparation for mediation for financial settlement, mediation referral and follow up advice. From £500 + VAT To £800 + VAT From £500 + VAT To £800 + VAT
In case of agreement being reached in mediation, reviewing agreement and advising on the same. Where acting for the petitioner, preparing and filing of consent order with the family court. From £700 + VAT To £1,200 + VAT From £500 + VAT To £800 + VAT

In case of no agreement being reached in mediation, all the work from issuing financial proceedings until First Appointment Hearing which includes the following:

  • completing form A and filing the same with the court;
  • complying with the court directions;
  • completion of Form E;
  • preparation of Questionnaires and Chronology;
  • preparation for First Appointment Hearing;
  • attending the family court for First Appointment Hearing to assist the Barrister in the case.
 From £2,000 + VAT To £3,000 + VAT From £1,500 + VAT To £2,500 + VAT

Preparation for First Dispute Resolution (FDR) Hearing which includes the following:

  • replying to the Questionnaire;
  • complying with the court directions;
  • assisting with valuation of properties, if applicable;
  • negotiations and offers;
  • preparation of court bundles, where acting for the petitioner;
  • attending the family court for First Dispute Resolution (FDR) Hearing to assist the Barrister in the case.
From £3,000 + VAT To £4,000 + VAT From £2,500 + VAT To £3,500 + VAT

Preparation for Final Hearing which includes the following:

  • complying with court directions;
  • preparing any witness statements;
  • instructing and briefing the Barrister for the court hearing;
  • attending any pre-hearing conference with the barrister, where necessary;
  • making necessary preparations for the final hearing;
  • attending the family court for Final Hearing to assist the Barrister in the case.
From £4,000 + VAT To £5,000 + VAT From £4,000 + VAT To £5,000 + VAT

Our Hourly Rates For Divorce Financial Settlement

  • Our team of divorce & family law solicitors will charge on hourly rate basis with hourly rate starting from £120 + VAT per hour in relation to your divorce financial settlment application. The agreed hourly rate will be dependent on the complexity of the matter.

How Much Is The Court Fee For Divorce Financial Settlement Order?

  • The court fee for filing divorce financial settlement application in the family court is £255 without consent and £50 with consent which has to be paid at the time of filing the application. Petitioners with very low income may qualify for court fee exemption.

FAQs - Getting A Divorce In England & Wales

What is a divorce?

Divorce in England & Wales is a legal process to end marriage between husband and wife after the relationship between them has broken down irretrievably. An application for divorce in England & Wales is made using application form D8.

How soon can I get divorced in England & Wales after my marriage?

You can get divorced in England & Wales only after you have been married for at least one year.

If you marriage was not consummated, you may be able to apply for annulment of your marriage even if you are married for less than a year.

What are the requirements to get divorced in England & Wales?

You can get divorced in England & Wales if all of the following are true:

  • you’ve been married for over a year
  • your relationship has permanently broken down
  • your marriage is legally recognised in England & Wales (including same-sex marriage)
  • Either you or your husband/wife is habitually resident in England & Wales

What is a 'clean break' divorce?

A clean break divorce is where no ongoing financial commitments remain between you and your spouse. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one spouse to the other.

A clean break is only possible in relation to the financial claims between spouses. It is not possible to have a clean break in relation to financial obligations towards your children.

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement order. It’s important to do so, even if you don’t have any assets to divide at the time of the divorce. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Can I get divorced in England & Wales if I got married abroad?

Yes, you can start divorce proceedings in England provided that you have a valid marriage certificate (and certified translation, if the marriage certificate is not written in English). The key issue is determining whether the marriage is valid and legal in the country within which the ceremony took place, with the local custom being observed. If the marriage has been carried out in accordance with the local laws and customs of the country in which it took place, it is usually a valid legal marriage.

You should also meet all of the following requirements for getting divorced in England & Wales:

  • you’ve been married for over a year
  • your relationship has permanently broken down
  • your marriage is legally recognised in England & Wales (including same-sex marriage)
  • Either you or your husband/wife is habitually resident in England & Wales

What other matters may also arise in divorce proceedings?

Depending on the personal circumstances of the petitioner and the Respondent, the following other matters may also arise in the divorce proceedings:

How long does the divorce process take?

This varies from court to court and from case to case, depending on the complexity of the case. An uncontested divorce with no financial settlement issues can take up to 6 months whereas a contested and complicated divorce can take much longer than 6 months and time would vary depending on the complexity of the matter.

How much does it cost to file a divorce in England?

The court fee for filing a divorce in England & Wales is £550 which needs to be paid at the time of submitting your divorce petition to the family court.

What is difference between uncontested and contested divorce in England?

Uncontested Divorce

An uncontested divorce is a divorce process where the Respondent to the divorce does not defend or contest the divorce. It is possible for the Respondent to disagree with the grounds for divorce yet agree to divorce taking place on the grounds that the relationship has irretrievably broken down between the Petitioner and the Respondent.

Contested Divorce

A contested divorce is one where the Respondent to the divorce petition decides to contest or defend the divorce. In other words, Respondent objects to divorce taking place in a contested divorce. A contested divorce is a more complicated procedure and will involve the divorcing couple having to attend family court for hearings. In very rare cases, Respondent can succeed in contesting a divorce in England & Wales. In the event of Resondent failing to defend the divorce, the family court is likely to make a legal costs order against the Resondent.

What are grounds for getting divorced in England & Wales?

There are 5 grounds for getting divorced in England & Wales which are as follows:

  • Adultery - The Petitioner alleges that the Respondent committed adultery and the marriage has broken down irretrievably.
  • Unreasonable Behaviour - The Petitioner alleges that the Respondent has behaved unreasonably and the marriage has broken down irretrievably.
  • Desertion Of The Petitioner By The Respondent - The petitioner can apply for divorce on the grounds that the Respondent deserted the petitioner more than 2 years ago and the marriage has broken down irretrievably.
  • 2 Years Separation And Respondent Consenting To Divorce - Petitioner and Respondent have lived separately for 2 years; Respondent consents to divorce taking place and the marriage has broken down irretrievably.
  • 5 Years Separation - Petitioner and Respondent lived separately for 5 years and the marriage has broken down irretrievably.

What is a Decree Nisi?

A decree nisi is a document that says that the court does not see any reason why you cannot divorce. You can apply for a decree nisi if your husband or wife does not defend your divorce petition.

What is decree absolute?

The decree absolute is the legal document that ends your marriage. You need to wait at least 43 days (6 weeks and 1 day) after the date of the decree nisi before you can apply for a decree absolute.

What documentary evidence do I need to apply for divorce?

To apply for a divorce you’ll need:

  • your husband or wife’s full name and address
  • your original marriage certificate or a certified copy (and a certified translation if it’s not in English)
  • proof of your name change if you’ve changed it since you got married - for example your marriage certificate or a deed poll

You must try to find your husband or wife’s current address if you do not know it. The court will need it to send them a copy of the divorce petition.

What happens if the respondent refuses to acknowledge the divorce petition?

If you can prove that your spouse received the divorce petition, you can apply for the deemed or substituted service. You can prove service by using a court bailiff or process server. 

Will I have to go to court for divorce petition?

Unless your spouse contests the divorce petition you filed, you do not have to go to court for divorce to take place. Only in contested divorce cases, the parties will  have to attend court hearing for the divorce to be decided by the court.

Who pays the legal costs in a divorce case?

Who pays the divorce legal costs will normally depend on the grounds for divorce. If your petition is based on unreasonable behaviour or adultery then you may be able to apply to the court for your legal costs to be paid by your spouse.

You should reach an agreement on the issue of costs at the outset of the divorce so that needless conflict is avoided down the line. If you are hoping that your costs will be covered by the other side, then be sure to discuss the matter with your divorce solicitor during your first interview.

Do I need a divorce solicitor for my divorce case?

Whethe or not you need a divorce solicitor to handle your divorce case is dependent on the complexity of the divorce matter and your ability to handle legal matters on your own. You normally engage a divorce solicitor for your divorce case in the following circumstances:

  • if you know that your spouse is likely to contest the divorce and will be unwilling to divorce;
  • if there are children involved and your spouse may not be willing to reach a mutual agreement regarding child arrangements;
  • If you and your spouse own significant assets or are in business together;
  • if there are overseas connections;
  • if one of you has been declared bankrupt;
  • if you wish to be claim spousal maintenance and be financially dependent on your spouse;
  • if the whereabout of your spouse are unknown;
  • if your spouse is unlikely to respond to your divorce petition.

What is a divorce mediation?

Divorce mediation is a method by which separating couples can agree and resolve the typical issues involving finances and children that arise during the divorce process. The mediator is a trained individual who is impartial and will act much like an umpire, guiding you and your spouse through face to face discussions about important matters such as divorce financial settlement and child arrangements.

Once an agreement has been reached, the mediator will draft a ‘Memorandum of Understanding’ to formally set out the proposals. Your divorce solicitor will then use the ‘Memorandum of Understanding’ to draw up your official agreement and further advise you.

Mediation is not suitable for all situations, but it is the right approach for many people and if there is a need for court proceedings to be issued then you will usually be expected to at least have attended a meeting concerning mediation (a Mediation Information and Assessment Meeting – MIAM). If your divorce solicitor believes that a MIAM is not appropriate or necessary, perhaps because divorce proceedings need to commence urgently or because domestic violence is involved, then they will let you know.

Will child arrangements issues decided by the court during divorce proceedins?

Unless the parents have reached an agreement with regards to child arrangements, one of the parties to the divorce proceedings will have to file a ‘Statement of Arrangements for Children’. This form provides the court with basic details about the children including their dates of birth, where they go to school and who is responsible for their care when the parents are working, if relevant. The form only serves to provide information and will not form the basis of any decision of the court.

In most cases, the parents will make these decisions themselves where possible, sometimes using mediation to assist in keeping discussions on track and in the best interests of the children.

It is worth noting that the court does hold the power to order that a Decree Absolute is not granted until it is satisfied with the arrangements for the children, although it is rarely the case that there will be any objection by the court provided the arrangements are reasonable and there are no concerns surrounding child protection.

FAQs - Divorce Financial Settlement

What Assets Are Split In Divorce Financial Settlement?

The adjustment of assets/finances covered by the financial court order may include the following:

  • property
  • money
  • shares
  • savings
  • pensions
  • debts
  • children/spousal maintenance

Does Spousal Behaviour Affect The Divorce Financial Settlement?

Normally, the behaviour of your spouse including adultery or unreasonable behaviour does not affect the divorce financial settlement. The grounds for divorce you use to obtain a divorce have no bearing on your financial settlement. Extreme behaviour may be taken into account by the court, for example, if one partner's violence has had a lasting effect on the other. If one partner recklessly or deliberately sabotages the financial position, for example, by spending recklessly or destroying assets, this could also be taken into account.

What is a ‘clean break’ divorce financial settlement?

A clean break divorce financial settlement is where no ongoing financial commitments remain between you and your spouse. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one spouse to the other.

A clean break is only possible in relation to the financial claims between spouses. It is not possible to have a clean break in relation to financial obligations towards your children.

What if I don’t have any assets to split?

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement. It’s important to do so, even if you don’t have any assets to divide at the time of the divorce. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Will any payments I make to my spouse while we are separated affect the final divorce settlement?

Not usually. It may be unwise to make excessively large payments to your spouse, because it might be argued that this shows both their need for such payments (or an equivalent transfer of assets) and your ability to pay.

Even so, any financial settlement should take into account the longer-term history of the marriage and future financial prospects.

On the other hand, if your spouse needs maintenance while you are separated, it would normally be sensible to provide it. Failure to do so is likely to make your spouse more hostile towards you.

Your spouse might apply to the court for an interim financial order requiring you to pay an appropriate level of maintenance. Both of these are likely to increase the overall level of ill feeling - and costs - in reaching a final agreement.

What effect will it have if I move out of the family home before we are divorced?

You will still have the same rights to occupy the home as you had before and can move back in if you choose.

There may be practical problems if, for example, your spouse changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need - such as important documents - with you in the first place.

There may also be other considerations so it is advisable to take advice before moving out.

Are there any precautions I should take during a divorce, for example, to stop my spouse taking cash from our joint account?

If your spouse can make withdrawals from a joint account without your agreement, you run the risk that some or all of the money will be taken. You will also be jointly liable for any debts run up on the account.

If you need access to the money or if you suspect that your spouse may misuse it, you may want to close the account. The same applies to any other form of joint borrowing or spending facility, such as a joint credit card.

However, if you suddenly freeze accounts that your spouse needs for living expenses, this will create problems. Your spouse will want you to make appropriate maintenance payments and may apply to the court for an interim financial order.

If your spouse is the sole owner of the family home, you should apply to the Land Registry to register an interest in the property. This will prevent the house being sold without your consent.

Is our divorce settlement affected if one of us remarries or starts cohabiting with a new partner?

If you remarry without having reached a financial settlement with your former spouse, you may lose the right to make any financial claim against your former spouse. He or she will still have the same right to make a financial claim against you as before.

If you have previously reached a clean break settlement, the remarriage (or cohabitation) will normally have no effect - you have already made a once and for all agreement.

If you are paying your former spouse maintenance (this does not include child maintenance), maintenance ceases if the recipient remarries (but not if the recipient merely starts to cohabit).

In any case, if your former spouse's financial position improves, you can apply to the court to stop paying maintenance or to pay a reduced amount.

If you are receiving maintenance from your former spouse, you should normally continue to do so after he or she remarries.

How long will it take to sort out our divorce and financial settlement?

Obtaining a divorce typically takes about six months. The process can take longer if anyone fails to deal with the various pieces of paperwork promptly.

How long financial settlement takes depends very much on your relationship with your spouse and the complexity of your financial affairs. Often, the financial settlement can be negotiated over the same period as the divorce proceedings, and is then confirmed by a consent order.

Where there is an agreed financial outcome, it is possible to obtain a court order embodying the agreement (consent order) and your decree absolute within 6 months from start to finish.

Where an agreement is not reached, it could take between 12 – 18 months to conclude form the date an application for financial settlement is made to the court.

Who pays the legal fees for a divorce financial settlement?

In most cases, both parties will have their own solicitor and will be responsible for their own legal fees. Only in unusual circumstances will the court consider conduct in the proceedings or the process of disclosure as a justification for an order for costs being made against the other party.

While negotiating a financial settlement you each use - and are responsible for paying - your own lawyer. As part of the settlement, however, one of you might negotiate that the other should pay part or all of their legal fees.

You can keep your legal fees down by agreeing as much as possible among yourselves. Fees can mount up if hostile spouses insist on conducting all negotiations through lawyers while arguing over trivial details. 

What orders can the court make in divorce financial settlement?

The court has power to make orders for a spouse including:-

  • Periodical payments (maintenance or alimony)
  • Secured provision (maintenance that is charged against an asset)
  • Lump sum (a cash payment)
  • Transfer of property (where one legal ownership of an asset is taken away from one spouse and transferred to the other)
  • (except upon decree of judicial separation) a pension  attachment and a pension sharing order
  • Agreed child maintenance orders, school fees orders and/or top up orders where there is a maximum Child Maintenance Service assessment.

Can money one of us expects to inherit be taken into account when we divorce?

Usually not unless you are about to receive the inheritance.

Will a prenuptial agreement protect my assets if we divorce?

Pre Nuptial Agreements are not legally binding in the UK but are considered to be pursuasive for the judge to exercise discretion in deciding the financial settlement by giving weight to the pre nupital agreement. Pre-Nups, Post Nups and Pre-civil registration agreements cannot exclude the authority of the Court when dealing with financial issues when a marriage or civil partnership irretrievably breaks down. When divorce arises, the court has discretionary powers to distribute assets as the Judge sees is in the best interest of the parties/children/individual circumstances. The prenuptial agreement which has been entered into fairly and after taking appropriate legal advice may have persuasive authority for the judge to exercise discretion and give weight to the same in distribution of assets.

The caveat is that while UK courts will recognise prenuptial agreements, they also still have the ultimate discretion to ignore any agreement reached if the agreement is deemed to be unfair to any children of the marriage.

What can I do if I find out my spouse has assets or income not disclosed when we agreed the divorce settlement?

You can go to court to get the financial settlement altered.

What can I do if I cannot afford the maintenance payments to my former spouse?

You can go to court to ask them to change the maintenance order to reflect your circumstances. For example, you might do this if you lose your job and cannot find another one.

Is it possible to reopen a divorce financial settlement?

It is possible to reopen a divorce financial settlement, but extremely rare. In most circumstances, once a financial settlement has been officially recorded in the form of a consent order, the financial ties between the divorcing couple are broken and neither of them will be entitled to make financial claims in the future.

However, a precedent set during the case of Barder vs Barder (1987) means that a court may allow a financial settlement to be reopened if something later happens that alters the principle on which the original consent order was made.

Before the court will agree to reopen a settlement, four key factors need to be satisfied:

  • A new event(s) occurs that invalidates the basis, or fundamental assumption, on which the original consent order was made.
  • The new event(s) must have occurred within a relatively short time after the consent order was made.
  • The request to re-open the financial settlement is made soon after the new event occurs.
  • The appeal does not prejudice any rights to assets acquired by third parties (for example, if a house has been sold to an unconnected third party).

Successful applications to reopen financial settlements are rare but they do happen – for example, in the case of Critchell v Critchell (2015).

Am I entitled to spousal maintenance after a divorce?

This will depend on many factors including:

  • How long you were married
  • The standard of living you enjoyed before the divorce
  • Your respective financial needs and the financial needs of any dependent children
  • The current earnings of each party
  • The potential earning capacity of each party in the future
  • The contribution made to the marriage, either financial or by caring for children and looking after the family home

For example, if a young couple with no children have been married for only a short time and both are working, then it may be fair for them both to leave the marriage with no ongoing financial ties and taking with them what they brought into the marriage.

If a couple have been married for 25 years and by agreement the wife gave up a career to bring up the family at home, while the husband became the sole bread winner, then the wife's future earnings capability may be severely compromised.

In these circumstances the wife should not be penalised for her lack of earnings ability and may be entitled to ongoing spousal maintenance.

How courts deal with pensions in divorce financial settlement?

When a marriage or civil partnership ends, courts deal with the pension arrangements in one of 3 ways.

  1. You’re given a percentage share of your former partner’s pension pot. This is known as pension sharing. The money that you get from the pension pot of your former spouse or civil partner is then legally treated as your money.
  2. The value of a pension is offset against other assets. This is known as pension offsetting. For example: you keep your pension and your former spouse or civil partner keeps the home.
  3. Some of your pension is paid to your former partner. This is known as pension attachment or sometimes pension earmarking. This is like a maintenance payment directly from one person’s pension pot to their former spouse or civil partner. Under this arrangement, money from your tax-free lump sum can also go to your former spouse or civil partner.

FAQs - Spousal Maintenance UK

What is spousal maintenance UK?

Spousal maintenance is maintenance that is paid by a husband or a wife to their former spouse following a divorce and is in addition to the child maintenance. Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (term of years) or for the remainder of the parties’ life (known as a “joint lives order”). Spousal maintenance ends if the recipient remarries or if either party dies. It may be varied or dismissed by the courts on a change in circumstances.

How long does spousal maintenance last in England & Wales?

If the marriage or civil partnership is short (typically, less than five years), it might not be paid at all or only for a short period through what's called a 'term order'. Where a couple has been together for a long time, or where an ex-partner is unable to work, it can be paid for life.

When does spousal maintenance stop?

Spousal maintenance usually stops if:

  • The payment term ends;
  • You or your ex-partner die, or
  • The person receiving spousal maintenance remarries or enters another civil partnership

It doesn’t necessarily stop if they live with a new partner without marrying or entering a civil partnership, although the person paying it could use this as a reason to apply to the courts to get the spousal maintenance amount reduced.

Who is entitled to claim spousal maintenance?

When a couple separate whether one party is entitled to claim spousal maintenance from the other is a common concern. There are several factors that need to be considered. To establish whether you are likely to be entitled to spousal maintenance you should ask yourself the following questions:

  • What are your financial needs and income potential? Can these needs be met without the support of your former spouse?
  • Have you been married for a long time and given up work to support your spouse or family by becoming the home maker?
  • Are you of an age where establishing a career, to deliver the kind of lifestyle you have been used to, would be difficult?
  • Would you be financially better off having a financial clean break and lump sum from your from your former spouse, rather than maintenance?
  • Are you prepared to take your case to court, if your former spouse will not agree to spousal maintenance?
  • Are you planning to re-marry? (if you do you will lose your right to spousal maintenance)

The conditions under which spousal maintenance might be paid vary, as every marriage varies. If a couple have been together for a long time and one party has given up work to run the home whilst the other has developed a career and been the family breadwinner there are arguments to say that the homemaker is entitled to financial support, in the form of spousal maintenance, if the marriage breaks down and on the basis that the spouse in need cannot support themselves financially from income they have coming in from other sources.

As is often the case with family law, every case is different. It is therefore important to take advice from a divorce and family lawyer. They will be able to consider your circumstances and advise on the likely success of your case.

How can I calculate spousal maintenance?

There are no hard and fast rules relating to spousal maintenance calculation.

In deciding whether spousal maintenance is appropriate and for how long, the court will consider a number of factors including:

  • the length of the marriage
  • whether there are minor children
  • whether there is an income disparity between the couple
  • how their housing needs are met
  • whether a spouse has a continuing financial need
  • whether a spouse has a diminished earning capacity.

Spousal maintenance is ordered by the court to enable the financially weaker spouse a period of time to adjust to being financially independent, without significant hardship. There is no set formula.

Divorce & Family Law News

No-fault divorce to start in autumn 2021

Couples seeking a no-fault divorce will have to wait until autumn 2021 even though proposed legislation removing fault from the divorce process has reached the finishing line of its parliamentary journey.

The Divorce, Dissolution and Separation Bill concluded its passage through the House of Commons yesterday. It will return to the House of Lords to consider an amendment before receiving Royal assent. However, lord chancellor Robert Buckland told MPs that the bill’s reforms will not come into force on Royal assent ‘because time needs to be allowed for careful implementation’.
Buckland said: ‘At this early stage, we are working towards an indicative timetable of implementation in autumn 2021.’

However, family lawyers are delighted to see the bill reach the end of its parliamentary journey. The Law Society said ‘no-fault’ divorce will bring divorce law into the 21st century.
Jo Edwards, head of family at London firm Forsters, said: ‘Along with most family lawyers, and indeed the general public, I was thrilled to see the bill conclude its passage in parliament this week after 30 years of campaigning by Resolution and others and, in recent years, many false starts. Despite vocal last-minute attempts by some backbench MPs to derail the bill, we finally have the prospect of a more civilised, dignified divorce process fit for the 21st century.

‘The fact that couples will be able to petition for divorce jointly is a hugely important step symbolically and the introduction of a minimum overall timeframe shows that this is not the "quickie divorce" that some have suggested.  Because the detail of the rules around the new process, as well as court forms and the online portal, will need to be looked at in light of the new legislation, it is not likely that no-fault divorces will be a reality in England and Wales until late 2021 or even early 2022. For the 100,000 or so couples who divorce each year, they can't come a day too soon.’ READ MORE FROM SOURCE

Enquiry Form

Our Services

We provide specialist legal services from our offices in London, Manchester and Birmingham in following areas of law:

Sunrise Solicitors is the trading name of Sunrise Solicitors Ltd (company registration no. 6405492). Sunrise Solicitors Offices are regulated by SRA under SRA ID 490903 (London Office) and SRA ID 645256 (Manchester Office). Sunrise Solicitors are also members of Immigration Law Practitioners' Association (ILPA).

Copyright © 2020 Sunrise Solicitors, All rights reserved