Legal Divorce FAQs

Divorcing couples should apply for the consent order during the waiting period between being granted the Conditional Order and the Final Order of the divorce. It is not compulsory and if there are no assets, it might not be necessary. Where there are assets to share, it is recommended to make a legally binding agreement at this stage, before the divorce is finalised with the issuing of the Final Order, as it will limit what a spouse is entitled to after a divorce. It is also important to note that, if you do not have a legally binding agreement in place, an ex-spouse can make future claims against you to receive a share of certain types of assets that belong to you, even if you did not own them during the period of your marriage and at the time of your divorce.

If a divorce is finalised and the Final Order is issued before the financial agreement has been made into a legally binding ‘consent order’, you may lose the right to a share in certain assets, such as a spouse’s pension. You may also have to pay Capital Gains Tax on the transfer of certain assets if it is done after the divorce is finalised. Having a legally binding consent order in place is also important to help protect you against future financial claims by your ex-spouse.

A consent order is a legally binding document that sets out the financial arrangements a couple have voluntarily agreed. A judge checks the agreement to see if it seems reasonable and fair to both parties and then will ‘seal’ the document as a legally binding court order. Each party then must abide by the agreement and cannot change it without approval or claim more from their former spouse.

A financial order sets out arrangements for the division of assets and liabilities and any other issues, such as maintenance payments and pension sharing. It is similar to a consent order but it is a decision made by a judge, typically when the couple cannot agree either by themselves or with help from other methods of non-court resolution. The couple will usually have to attend a series of court hearings and submit documented evidence. The process takes longer and costs more than getting a consent order through agreement.

A consent order can cover what will happen to the marital home and if it is to be sold, what share will be given to each party, any property transfers, any lump-sum payments, maintenance payments that have been arranged and any shares of other assets, including savings, investments and pensions. It can also include a decision on who will pay off any debts. The law encourages couples to try to achieve a ‘clean break’ where circumstances allow.

A clean break order is an agreement to permanently settle your financial arrangements so that there are no on-going payments being made and neither of you can make any financial claims against the other in the future. This might not be appropriate if you have young children and require spousal maintenance due to the income level of your spouse.

There is no set formula for the sharing of assets, but the standard is to start with a 50:50 split of matrimonial property. This usually does not include property which each party independently owned prior to the marriage. This is usually clear in the case of short marriages but can become complicated in long marriages when assets have moved over time. For couples with a lot of assets, courts will often be asked to decide what is and is not matrimonial property. Only matrimonial property is split between the couple, unless matrimonial assets are not enough to meet the needs of the parties. Any greater need caused by factors such as future earning potential, housing costs and whether one of the spouses has had a significantly lower or no income during the marriage or will be the main carer of any children, will usually be reflected in the shares.

You can come to an agreement between you and ask a solicitor to draft a ‘consent order’. This is then lodged at the family court and a judge will decide if it is fair and grant the consent order accordingly. If you cannot reach an agreement between you, you can explore mediation, arbitration, or take the case to court. Costs will increase with the involvement of solicitors. A court case can become extremely expensive and may even cost more than what you are hoping to receive through the settlement.

It is useful to start looking at your finances and how you plan to share your assets as soon as possible. It may take a considerable amount of time to come to an agreement on some issues and to get valuations on some assets, such as any pension funds.

A couple can submit their financial agreement to the court after the Conditional Order for the divorce has been granted and before the Final Order is applied for.

To apply to the court for a financial order, ‘Form A’ must be completed from the gov.uk website: www.gov.uk/government/publications/form-a-notice-of-intention-to-proceed-with-an-application-for-a-financial-order It may be advisable to get legal advice when completing this form as it requires all assets and labilities to be listed from the previous 12 months. You may need legal advice as to how to calculate values of and the split of assets.

There are three steps to the court process:

• The first appointment where the couple meet with a judge in an initial hearing to discuss the application. Both spouses need to complete a financial statement (Form E) before the appointment: www.gov.uk/government/publications/form-e-financial-statement-for-a-financial-order-matrimonial-causes-act-1973-civil-partnership-act-2004-for-financial-relief-after-an-overseas
• The Financial Dispute Resolution (FDR) appointment or appointments to try to agree on the financial arrangements without the need for a final hearing
• The final hearing where a judge will decide how to separate your finances if you cannot come to an agreement. If you reach this final hearing, both parties are likely to be cross examined on their statements.
The judge will account for the needs of any children first and foremost, and then try to accommodate the differing needs of the two spouses. The judge will try to arrange a ‘clean break’ and split the assets in such a way that the spouses are no longer financially tied to each other and the overriding objective is to achieve fairness.

You can apply to the court for an emergency injunction to freeze your spouse’s assets and stop them from being sold or given away and to put right any attempts they have made to dispose of assets to prevent you from making a claim for a share of them. This is costly and comes at a risk if you are wrong about what your spouse was doing, as the court may penalise you in some way. If your spouse is spending lots of money to deplete assets, there is little than can be done, but this is likely to be taken into account in the final settlement.

A court may issue a ‘maintenance order’ to instruct a higher earning spouse to make regular maintenance payments to the other spouse to help with their living costs either for a limited period of time or until your circumstances change, such as if one of you remarries or dies. Maintenance is usual where one spouse is a high earner and the other spouse does not have an independent income or has a low income, however, it is usually limited to the length of time the spouse needs to become independent, where that is possible.

Yes, after being granted a Conditional Order, you must wait six weeks and one day before you can apply for the Final Order, but you have up to one year in which to apply for the Final Order, so you can wait for the financial agreement to be completed before applying for the Final Order. If this is not achieved within a year, you can continue to delay applying for the Final Order. If the Final Order is issued before the financial agreement has been made into a legally binding Consent Order, you may lose rights to a share in certain assets, such as a spouse’s pension. You may also have to work out whether you owe any Capital Gains Tax if assets are transferred after the divorce is finalized. You would not have had to pay CGT it if you were still legally married at the time of transfer.