Divorce is a legal process to end marriage between husband and wife after the relationship between them has broken down irretrievably. You can get divorced in England & Wales only after you have been married for at least one year. You can apply for divorce online using application form D8 with valid grounds for divorce. This is how you can get divorced in England & Wales.

Contents Table

Specialist Divorce Lawyers
When Can I Get A Divorce?
Grounds For Getting A Divorce
Procedure For Gettig A Divorce
Divorce Financial Settlement
Divorce Financial Settlement In England After An Overseas Divorce
How We Can Help?
How Much We Charge?
How Much Is The Court Fee?
Frequently Asked Questions (FAQs)

Specialist Divorce Lawyers

Our expert team of divorce lawyers at Sunrise Solicitors are specialists in dealing with divorce and financial settlement matters. As one of the best divorce lawyers in London, our divorce solicitors have wealth of knowledge and extensive of experience of dealing with divorce matters.

Thinking of getting a divorce in England & Wales? Get legal help and assistance from our fixed fee divorce lawyers in London, Manchester & Birmingham. Our team of fixed fee divorce laywers will provide you fast, friendly, reliable and fixed fee legal services for your divorce and financial settlement. Ask a question to our expert divorce lawyers for free divorce advice by completing our enquiry form or schedule an appointment with one of our divorce lawyers for detailed divorce advice service.

When Can I Get A Divorce In England & Wales?

You can get a divorce 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

In some circumstances a divorce may not be suitable or applicable. Depending on the circumstances of your case, it may be more appropriate to annual your marriage or legally separate. An annulment or legal separation can be applied for within the first year of marriage.

What Are Various Grounds For Getting A Divorce In England & Wales?

When you apply for a divorce you’ll need to prove that your marriage has broken down irretrievably and cannot be saved. This means that either one or both of you feel that you cannot stay married to each other. Either of you may apply to the court in England and Wales for the marriage to be dissolved as long as you have been married for one year at least and that one of you has been a resident here for the year before your application is made. The application to the court is called a Petition and the spouse who files (sends) the Petition is called the Petitioner. The other spouse is then called the Respondent. You’ll need to give one or more of the following 5 reasons (also known as ‘facts’).

There are 5 grounds for getting a divorce which are as follows:

  • Adultery - Your husband or wife had sexual intercourse with someone else of the opposite sex (committed adultery). and you find it intolerable to live with him or her. In most cases you prove adultery by your husband or wife admitting it. If not, you will need to speak to your family law solicitor. If you carry on living with your husband or wife for more than six months after you find out about the adultery, you will generally not be able to use this as ground for divorce unless the adultery is continuing.
  • Unreasonable Behaviour - Your husband or wife has behaved in such a way that you cannot reasonably be expected to live with him or her. This covers all sorts of bad behaviour. You need to think about the main things that have made your husband or wife difficult to live with. These are summed up in the petition (the application for divorce) in a few short paragraphs. Our team of family law solicitors will aim to send a draft copy to your spouse or his/her appointed family law solicitors for an agreement. As with adultery, you cannot rely on single event that took place more than six months before you file your petition, if you have lived together since then. The examples of unreasonable behaviour could include:
    • physical violence;
    • verbal abuse, such as insults or threats
    • drunkenness or drug-taking
    • refusing to pay towards shared living expenses
  • Desertion Of The Petitioner By The Respondent - Your husband or wife has deserted you for a period of more than two years. Desertion means leaving your husband or wife without his or her agreement and without good reason. 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 - You have lived separately for more than two years and your husband or wife (the respondent to the divorce petition) consents to the divorce. This is often called a 'no-fault' divorce. You can have had periods of living together as long as they do not add up to more than six months and you have been apart for least two years altogether. Your husband or wife must agree in writing. It may be possible for you to show that you’ve been separated while living in the same home as your wife or husband as long as you’re not living together as a couple (for example you sleep and eat apart).
  • 5 Years Separation - You have lived separately for more than 5 years. Your husband or wife who is repondent to the divorce petition does not need to agree to this. The Respondent cannot defend the divorce petition on this ground but he/she can ask the court not to grant the final decree because of a major financial or other type of hardship.

What Is The Step By Step Procedure For Getting A Divorce In England & Wales?

Following is the step by step procedure for getting divorced in England & Wales:

  1. The petitioner would file the divorce petition in the court by completing application form D8 and send the form with the relevant enclosures to the court;
  2. Within a few days of getting the divorce petition, the court would write to the petitioner or his/her divorce solicitors confirming the receipt of the divorce petition;
  3. The court will then send a copy of your divorce petition to your spouse (respondent). If your spouse has instructed divorce solicitors to act for him/her, a copy of the divorce petition would be sent to them. If you applied for divorce on adultery grounds and named the other party who committed adultery with your spouse, a copy of the divorce petition would also be sent to such other named party;
  4. Within 8 days of receiving the divorce petition, the respondent is required to send a reply by post to your divorce petition stating whether or not he/she intends to contest the divorce. You must respond within 7 days in case of online response where the divorce was filed by your spouse online;
  5. If your spouse (respondent) does not contest the divorce, you can then apply for decree nisi. If your spouse does contest the divorce, you’re still able to apply for decree nisi, but you’ll need to attend a court hearing where your case will be discussed. A family court judge will then decide whether to grant you a decree nisi. If your divorce petition is approved by the court, you and your spouse (respondent) will be sent certificates stating the time and date when divorce will be granted. If your divorce petition is rejected, you may be sent a form called a ‘notice of refusal of judge’s certificate’ giving reasons why you are not permitted to divorce. This form will also tell you what steps to take next. For example, you might be asked to provide additional information or you might be required to attend a hearing.;
  6. After 6 weeks and 1 day of decree nisi being granted by the court, you can then apply for a decree absolute. Before applying for a decree absolute, it is advisable to resolve any financial issues, if there are assets and or money of which settlement is required. Once you have decree absolute, you are officially divorced and no longer married .

Divorce Financial Settlement

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. An application for divorce financial settlement is made to the family court by completing application form A.

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.

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. READ MORE

Financial Settlement In England & Wales After An Overseas Divorce

If you have already been divorced abroad and obtained no financial settlement or the financial settlement made in the other country was inadequate, you may be able to apply to the English Court for a financial settlement order against your former spouse. 

The English family courts have the ability to grant divorce financial provision even though a divorce may have been previously pronounced abroad and financial provision already made. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on divorce by a foreign court in a situation where the parties had substantial connections with England.

Already Divorced abroad and want to apply for financial relief in England? Contact our expert team of divorce financial settlement solicitors London, Manchester or Birmingham for fast, friendly, reliable, and fixed fee legal services for your divorce financial settlement after foreign divorce. READ MORE

How Our Divorce Lawyers Can Help You With Your Divorce Matter?

Divorce and separation is a very difficult decision to make and should never be taken lightly. Our team of family law solicitors is aware of the sensitivity in this matter and every individual is in a different situation. To make your life easier, you can seek expert legal help from the family law solicitors at Sunrise Solicitors. Our team of family law solicitors are highly trained and experienced in all aspects of divorce law and will guide and support you each step of the way. We will cut through the legal jargon and ensure you understand exactly what’s happening at all times. Our team of expert family law solicitors will provide the required legal help and guidance with step by step procedure for getting divorced in England & Wales.

Our team of family law solicitors will advise and assist to cater for your individuals needs. We will discuss the possible grounds on which you can apply for divorce after gathering all the factual information from you. We will explain to you the court procedures in very simple and clear terms and fully guide you through the procedures and carry out all the follow up work until the Decree Absolute is issued by the family court.

How Much Sunrise Solicitors Charge For Getting Divorced In England & Wales?

Our Fixed Fee For Divorce

  • Our fixed fee for divorce ranges from £600 + VAT to £1,200  + VAT in relation to your divorce  where the application for divorce is not contested by the Respondent (uncontested divorce);
  • Our team of divorce and family law solicitors can also act for your divorce financial settlement on fixed fee basis.

Our Hourly Rate For Divorce

  • Our team of family law solicitors will charge on hourly rate basis with hourly rate starting from £120 + VAT per hour in relation to your divorce petition where the divorce matter is either complicated or is being contested by the respondent (contested divorce). The agreed hourly rate will be dependent on the complexity of the matter.

How Much Is The Court Fee For Filing Divorce In England & Wales?

  • The court fee for filing divorce in the family court is £550 which has to be paid at the time of filing for divorce. 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 - Financial Settlement In England After An Overseas Divorce

Can I apply for divorce financial settlement in England after my overseas divorce?

You can apply for divorce financial settlement in England after your overseas divorce if you obtained no financial settlement or the financial settlement made in the other country was inadequate and parties to the divorce have sufficient connection to England.

What are the circumstances under which a financial relief in England after an overseas divorce is likely to be a viable option?

In practice, an application for financial relief in England after overseas divorce is most likely to become a viable way to proceed in cases where the foreign divorce was in a jurisdiction where the courts:

  • do not have jurisdiction over foreign property;
  • have no, or under-developed, mechanisms to force financial disclosure;
  • demonstrate favouritism towards nationals over expat spouses;
  • have no mechanism to share pensions;
  • demonstrate favouritism towards those of one religion over another; or
  • have no or under-developed mechanisms to enforce agreements and orders.

Under what provisions of Family Law, an application for financial relief in England can be made after a foreign divorce?

Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) allows a person who has been divorced abroad to apply for financial relief in England after an overseas divorce. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on divorce by a foreign court in a situation where the parties had substantial connections with England.

What are the two stages for financial relief in England after an overseas divorce?

The 2 stages for financial relief in England after an overseas divorce are as follows:

First Stage: Sermission Stage

First, the Court’s permission must be obtained to make an application for a financial award. The process begins with a without notice application for permission to proceed. The applicant must show that they have a 'substantial ground' for the application to proceed. The permission stage is designed to filter out weak applications before the respondent is put to the significant costs of defending an application that may be fatally flawed or have little merit.

At the permission stage the applicant must be able to show that they satisfy the jurisdictional requirements and that the legal test set out in in the leading case of Agbaje v Agbaje [2010] has been met.  The threshold is not high but higher than a "good arguable case".

Second Stage: Divorce Financial Settlement Proceedings After Grant Of Permission

After the permission to proceed with financial settlement has been granted by the court in the first stage of the process, the court procedure for second stage is the same as for an in-country divorce financial settlement.

What are the jurisdiction requirements for permission to be granted by the family court for financial relief in Engalnd after an overseas divorce?

In order to bring a claim in England, the parties must have sufficient connection to England as follows:

  • Either party is domiciled in England and Wales at the time of the foreign divorce or at the time of the application; or
  • Either party has been habitually resident in England and Wales for 12 months at the time of the foreign divorce or at the time of the application; or
  • One party has an interest in a dwelling house in England and Wales which had been a matrimonial home (when claims are limited to the value of the house);
  • Other narrow criteria following recent EU legislation.

What are the leal requirements for grant of permission to apply for financial relief in England after an overseas divorce?

For Part III proceedings to initiate in England, both the marriage as well as divorce must be legally recognised and valid under English law. Part III proceedings can only be brought if the applicant has not remarried.

The legal test on an application for permission is set out at paragraph 33 of Agbaje:

"... the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts. It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."

Further guidance can be found in Traversa v Freddi [2011] at paragraph 30 and 31:

"It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter.

At the hearing of the section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following sections erect. Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge."

What factors are taken into account by the court when considering permission application for financial relief in England after an overseas divorce?

Followring are the factors that the judge must take into account when assessing whether the applicant has satisfied the legal test set out in Agbaje are detailed in s16(2), MFPA 1984:

  • the connection that the parties to the marriage have with:
    • England and Wales;
    • the country in which the marriage was dissolved or annulled, or in which they were legally separated; and
    • any other country outside England and Wales;
  • any financial benefit that the applicant, or a child of the family, has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or operation of the law of a country outside England and Wales;
  • where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;
  • any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales, and, if the applicant has omitted to exercise that right, the reason for that omission;
  • the availability in England and Wales of any property in respect of which an order in favour of the applicant could be made;
  • the extent to which any order made is likely to be enforceable; and
  • the length of time that has elapsed since the date of the divorceDissolution Of Civil Partnership, annulment or legal separation.

How important is the detailed personal statement of the applicant for an application for permission to apply for financial relief in England after an overseas divorce?

The application for permission must be supported by a very detailed personal statement in support of the Application. Such supporting statement of the Applicant should meticulously address:

  • the background of the case,
  • why both the marriage and the foreign divorce is entitled to be recognised as valid in England & Wales; and
  • how the jurisdictional requirements are satisfied.

The statement should demonstrate that the merits tests set out in the legislation and case law have been met. Where available, very full documentary evidence should be exhibited to the statement. The statement in support of the application is also a good opportunity to discuss in detail the overall merits of the case beyond the application for permission.

Do I need country expert report for permission to apply for financial relief in England after an overseas divorce?

The court must take into account the financial benefit that has been, or is likely to be, received in the foreign jurisdiction, and if the applicant has the right to apply for relief, and reason why that right has not been exercised. These factors cannot properly be addressed without evidence as to the law of the foreign jurisdiction. The applicant should therefore consider obtaining a short expert report from a specialist in the relevant jurisdiction to be attached to their statement in support of their application for permission.

Why financial settlement claim in England after an overseas divorce?

If you have already been divorced abroad and obtained no financial settlement or the financial settlement made in the other country was inadequate, you may be able to apply to the English Court for a financial settlement order against your former spouse. 

The English family courts have the ability to grant divorce financial provision even though a divorce may have been previously pronounced abroad and financial provision already made. The purpose of the legislation, known as Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) is to alleviate the adverse consequences of no, or no adequate, financial provision made on divorce by a foreign court in a situation where the parties had substantial connections with England.

There are still some appalling injustices in some countries abroad which is where the English legislation helps to redress some of these cases. It is an opportunity for fairness and justice for some international families. Part III proceedings can also usefully be used where the law of the country where the divorce occurred does not allow orders to be made in respect of offshore property. It can also be used to obtain a pension sharing order in respect of an English pension in circumstances where other issues are dealt with in the foreign divorce and a foreign divorce pension sharing order will have no validity for the English pension company.

However, it is not for England to act as a court of appeal of other countries with similar approaches to England. Neither is it an opportunity to have two ‘bites of the cherry’.

Where the connection with England is strong, it may be appropriate for there to be such provision as would have been made had the divorce been in England. Where the connection is not so strong and there has already been adequate provision, it will not be appropriate for Part III to be used as a simple "top up".

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.

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