Divorce & Financial Settlements

A divorce is the legal ending of a marriage. Divorce is more permanent than separation and involves a legal procedure. The result of a divorce is that a couple’s legal ties to one another are severed and they are no longer spouses.

To be eligible to apply for a divorce, you must have been married for at least one year. The court will require a certified copy of your marriage certificate to be submitted with your application. If a married couple wishes to end the relationship before one year has passed, they can apply for Judicial Separation, which can be sought at any time. 

A divorce application can either be made jointly or initiated solely by one spouse. The processes for joint and sole applications are identical — the decision ultimately hinges on how amicable the relationship remains. 

If you foresee that your spouse is unlikely to cooperate with the divorce — or there is a possibility that they will change their mind — a sole application might be most appropriate. 

Since 2022, it has been possible to initiate a divorce or dissolution of a civil partnership without any requirement to blame the other party (by alleging adultery or unreasonable behaviour), and without the need for you to wait to have been separated for two years or more. This is known as ‘no fault’ divorce.

Now, applicants can simply confirm that the marriage or civil partnership has broken down irretrievably. It’s also now possible for a couple to jointly apply for a divorce or dissolution.

You can apply for divorce online or by post.

Both postal and online applications are essentially a ‘tick-box’ exercise for which you need to complete a short series of questions.

The court fee for the application is £593. If you are on a low income, the court can waive or reduce the fee if you apply for ‘help with fees’. It’s important to note that, in respect of joint applications, both parties must meet the income criteria to be eligible for help with fees. 

Once your application has been completed, it will then be checked and ‘issued’ (sent out) by the court. If you applied jointly, you and your spouse will receive an ‘acknowledge receipt’ from the court. If you applied on a sole basis, then the court will send the application to your spouse, along with an ‘acknowledgement of service’ notification. Your spouse must respond to this acknowledgement of service within 14 days to indicate whether they agree with or intend to dispute the divorce. If they dispute the divorce, they will need to complete an ‘answer form’ to explain why they disagree with the divorce. 

From the date of issue for both sole and joint applications, a 20-week ‘cooling-off’ period begins. At the end of this 20-week period, you can apply for a ‘conditional order’ — a document which confirms that the court doesn’t see any reason why you can’t divorce. 

Once you’ve obtained the conditional order, you are entitled to enter into an agreement to resolve the matrimonial finances (the court cannot approve a financial order before this stage). After the grant of conditional order, there will be a further six-week wait before you can apply for a ‘final order’, which legally ends the marriage. 

If the application is straightforward and completed in a timely manner, it will take at least six months to complete the divorce application process and be granted the Final Order, which will dissolve your marriage entirely. This is because you must wait for 20 weeks from the point of issuing your divorce application before you can apply for the Conditional Order. This is the first of two Orders granted in the divorce procedure. Once it has been granted, you then must wait a minimum of six weeks before you can apply for the Final Order. Sometimes, it’s advisable to delay applying for the Final Order. This may be because the financial arrangements haven’t yet been finalised. In such cases, it can take longer than six months to get a divorce.

Yes, your spouse can issue a divorce application at court without your consent or knowledge. They can make a sole application to court on the basis that the marriage (or civil partnership) has broken down irretrievably. While you will be given the opportunity to acknowledge the divorce, if you don’t your spouse can still continue with their application for a divorce so long as they can prove that you have received the application. 

If you feel confident enough to deal with the online divorce application yourself, there will only be the court fee to pay at the start of the process when you issue your application. If you instruct a solicitor, they may charge you an hourly rate or fixed fee to deal with the process for you. We recommend that you take legal advice prior to making any application to court.

This will very much depend on the circumstances and complexity of your case. However, as a general rule, the more agreement that there is between parties, the less you’re likely to spend in legal fees.

Each solicitor has their own hourly charge-out rate, which is generally dictated by experience and geographical location. The overall cost of your case will be impacted by the amount of time needed to conclude matters.

There may be other associated costs to consider, which are known as disbursements. For example, court fees, expert fees, barrister fees and mediator fees. 

There are various options available. If you’re in a position to do so, you can fund your costs from your income and/or savings. You may also have access to joint savings, shared between parties to meet their respective legal fees. However, all too often, access to joint funds is refused or there are simply insufficient funds to meet the fees until settlement is reached. 

In these circumstances, you could consider borrowing monies either commercially (via a bank loan or credit card) or from family. However, care should be taken to ensure that family loans aren’t perceived as gifts or loans that don’t require immediate repayment (known as soft loans), as this could have an impact on how they’re classified in matrimonial finances cases. 

It’s therefore important to obtain expert advice in advance to ensure that your position is best protected.

Another option which is less widely used is litigation funding. This is where you borrow the financial resources to fund your case from an external provider. Funds can be accessed directly from the lender by your solicitor during the course of your case and repaid at the end of the case when your financial settlement is received.

Yes. If you feel confident and comfortable dealing with an online application and completing the information yourself, you can get divorced without the need for a solicitor. It’s sensible to take legal advice on the divorce process and advisable to involve a solicitor in the financial side of your separation. Once you receive your final divorce order, you’re officially divorced. However, this doesn’t end the financial claims that exist between you and your spouse by virtue of your marriage or civil partnership. It’s important to seek legal advice from a family lawyer on how to deal with financial claims in relation to a divorce. This can help you to achieve a fair outcome that meets your needs and protects your assets in the future.

Legal services orders were introduced in 2013 and enable the court to order the other party to pay your legal costs — either by way of instalments or a lump sum.

To benefit from this, certain criteria must be satisfied. This can limit your ability to apply for such an order. You must demonstrate that you wouldn’t otherwise be able to obtain appropriate legal advice or secure a loan to pay for legal services (including litigation loans). In addition, the court will consider many other factors set out in the Matrimonial Causes Act 1973, s.22ZA.

While the general rule in family proceedings is that no costs orders are made, there are some exceptions. 

The rules in relation to costs orders are complex. Specific rules apply to different types of proceedings and interim hearings. 

In financial proceedings, these exceptions include litigation misconduct and running an untenable argument. 

In children proceedings, exceptions are only given in exceptional circumstances that involve a party’s extreme and/or adverse conduct.

It should also be noted that different rules apply to proceedings relating to property owned by cohabitants. In those proceedings, costs generally follow the event — meaning that if you’re successful, you can expect the court to order the unsuccessful party to pay all (or some) of your costs.

A decree absolute simply ends your marriage. It will not prevent a court from subsequently dealing with your former spouse’s financial claims. 

Even if you entirely agree about what should happen and you have implemented that agreement — for example, by selling the family home and dividing the proceeds between you — you should still have that agreement recorded in a final and binding court order, known as a consent order. 

A financial consent order details the terms of the agreement that you have reached with your spouse. You both need to decide how you will share the matrimonial assets, including capital assets, liabilities, pensions and income. 

If you and your spouse can reach an agreement in relation to your finances, this can be drawn up into a financial consent order by a solicitor and lodged at court with a £50 fee for the consideration and approval of the judge. After this has been paid, the order is legally binding. 

Once a separating couple has submitted their divorce application to the court —either on a joint basis or with one spouse submitting the application as the sole applicant — the court will issue the application. 

20 weeks after the issue date of the application, the applicant will be able to apply to the court for the Conditional Order.

The Conditional Order has replaced the ‘Decree Nisi’ under the old divorce regime (pre-April 2022, when the ‘no fault divorce law’ was implemented). This is the mid-point within the divorce proceedings — and even after the Conditional Order has been pronounced, the parties will still be legally married.

It's the Final Order (which has replaced the old ‘Decree Absolute’) that formally dissolves the parties' marriage. 

The Conditional Order is, however, important for two reasons:

1. The Conditional Order confirms that the court is satisfied that the parties have established that their marriage has irretrievably broken down (the ground for divorce) and as such they're entitled to their divorce.
2. It's only once the Conditional Order has been pronounced that the court is able to make legally binding orders in respect of the parties' finances.

It's therefore advisable that once divorce proceedings have commenced, negotiations in relation to the financial position take place so that it's possible an agreement may be reached during the 20-week waiting period from the issue of the divorce application. 

If an agreement is able to be reached, it'll be converted into a Consent Order and submitted to court for approval once the Conditional Order has been made by the court.

If discussions with your spouse fail, there are a variety of ways to resolve financial issues upon divorce. You could instruct a solicitor to negotiate on your behalf, try mediation, collaborative law or arbitration or issue financial remedy proceedings at court. 

If a consensual agreement cannot be reached using any one of these processes, the court can impose a financial order at the conclusion of financial remedy proceedings.

The aim of any financial settlement (whether decided by the court or negotiated outside of court) is to fairly divide the divorcing couple’s assets. All assets owned by the couple will be disclosed and their values ascertained. Where a business is involved, independent accountancy input may be required to confirm the value of the business or an individual’s shareholding.

This doesn’t mean that a business owned solely by one of the parties must be sold, or that the company itself must be divided up in some way. Often, the appropriate result will leave the business with the owner, while other assets will be given to or be retained by the other spouse, such as cash, property or pension.

There are many options in terms of how jointly owned businesses are dealt with when divorcing. It may be most practical for one spouse to transfer all their shares to the other as part of the financial settlement. In return for the transfer of shares, they may receive cash or other assets.

Sometimes a spouse may retain some shares, even if it’s agreed that they will not be involved in the day-to-day running of the business going forward. However, in such circumstances, the parties should consider entering into a shareholders’ agreement to regulate the business relationship and govern the way in which the business is run. 

There may also be occasions where shares can be sold to third parties, although this will depend on the nature of the business and how appropriate a sale is. There may also be some circumstances in which it’s felt that a business should be dissolved.

A pension attachment order (also known as an earmarking order) redirects all or part of an individual’s pension to their ex-partner at the time the pension comes into payment.

The court can order that the ex-partner receives one (or a combination) of the following benefits:

• All or part of the pension member’s tax-free lump sum.
• All or part of the pension member’s monthly income.
• All or part of any lump sum which is paid upon the death of the pension member.

It’s important to note that the person whose favour in which the order was made will only receive the pension income when the pension member is of the age where they are in receipt of their pension. This type of order would also usually end on the pension member’s death or the remarriage of the receiving partner.

A pension sharing order tells the pension provider to transfer a percentage of the pension to whichever spouse is to benefit from the order.

While the pension share can sometimes remain with the same pension provider and be put into the receiving spouse’s name, more often it’s transferred into a different scheme.

Depending on the value of the pensions, it would usually be advisable to seek expert advice on how to best share the pensions upon divorce. It’s common for a pension expert (or pension actuary) to be instructed to calculate how the pensions will be shared to equalise income or capital value in retirement. The expert can be asked to provide additional calculations so that (for example) only pension built up during the marriage is considered.

In many divorces, it’s common for an agreement to be reached which involves offsetting.

This enables you to ‘trade’ your right to receive a pension benefit or give away your pension benefits. For example, one spouse may retain more equity in the family home and forego a pension sharing order.

The problem with offsetting is that it’s difficult to compare the value of a pension with the value of an asset. Therefore, it’s always best to obtain specialist advice from a divorce or pension expert.

You’re responsible for your own legal fees. There are certain, limited circumstances where the court may make a ‘costs order’, providing that the other party pays all of (or makes a contribution towards) your costs. However, the general rule in family proceedings is that each party meets its own costs.

While the starting point in any divorce or dissolution case is a 50/50 equal split on the capital assets — such as the family home — certain factors can be considered that mean it wouldn’t be fair if the equity was split equally. In such circumstances, one person may therefore be entitled to a larger share. 

This could be due to a difference in earnings which mean that one person can afford to raise and pay for a larger mortgage and wouldn’t need as big a deposit to re-house themselves. The other partner who earns less would then need a larger slice of the equity for a deposit.

When it comes to dividing the equity in the family home following divorce or the dissolution of a civil partnership, in normal circumstances it doesn’t matter if one person paid more towards the mortgage than the other or paid the initial deposit. This doesn’t deny the other person in the marriage or civil partnership an entitlement to the equity — so you shouldn’t make any assumptions about this.

The starting point is an equal division and the couples’ financial and housing needs should be met from any settlement. However, if one person paid the initial deposit, the property was purchased in joint names as tenants in common and a deed of trust was prepared to ringfence the deposit monies to protect them in the event of a separation, then the deposit can be taken into account. Yet this is just one factor among several others, so a holistic approach is taken when dealing with division of the family pot. The needs of the family — particularly any children — will always be the main consideration.

Consequently, it’s important to take expert legal advice prior to purchasing a property with a partner or entering a civil partnership or marriage.

Generally, when you’re married or in a civil partnership, all assets make up the entire family pot and are capable of being divided between the couple to meet their financial and housing needs. This is irrespective of whether they’re in one person’s sole name or joint names — and whether they were purchased pre- or post-marriage or civil partnership. 

However, there are limited circumstances where entitlement to the equity in a pre-marital property by the non-owning person could be reduced and this factor is considered upon settlement. 

For example, in short childless marriages, pre-marital assets (such as property) could be ringfenced or the non-owning person’s entitlement to the equity could be reduced. 

You’ll need to take expert legal advice to look at all the facts of the case before determining how pre-marital assets should be dealt with when agreeing to a financial settlement. You shouldn’t assume that one person is entitled to retain 100% of the equity and the other is denied any interest in the property entirely.

Yes — in some cases, a spouse or civil partner can be entitled to both child maintenance and maintenance for themselves (sometimes called spousal maintenance or periodical payments), depending on the level of income and outgoings. In cases where there isn’t shared care of the children, the parent who the children spend more time with can claim child maintenance from the other parent who is obliged to pay. The Government’s website has an online calculator that works out what level of child maintenance should be paid.

Child maintenance is paid for the benefit of the children. Spousal maintenance or periodical payments are separate and paid to benefit the spouse or civil partner that needs additional financial support to enable them to meet their monthly outgoings. This might be because they earn significantly less than their partner or are unable to work.

If a partner has maximised their income as much as they can but still fall short of meeting their monthly outgoings and the other person has enough disposable income, this may trigger a spousal maintenance claim to ‘top up’ the other person. While ideally there should be a financial ‘clean break’ between a couple following divorce or the dissolution of a civil partnership, sometimes this is impossible.

Unfortunately, no. This is a very common myth. The reasons why a marriage or civil partnership breaks down doesn’t usually have any impact on the financial settlement reached. If your partner has committed adultery, this doesn’t mean that you’ll get more of the money or assets.

Potentially, yes — when you’re married or in a civil partnership, pensions are considered in the overall financial settlement to meet financial needs and can be shared. However, the length of the marriage or civil partnership and whether your partner has their own pension can affect the percentage of entitlement. Your partner’s pension is therefore considered in the overall family pot as well. In some situations, pensions aren’t shared and there’s a chance that they can remain intact. Instead, pension entitlement can be dealt with by way of ‘offsetting’ against capital assets such as money in bank accounts (like savings) and equity in the house. The other partner could receive a larger percentage of the capital assets instead of claiming a percentage of your pension.

If you’re unable to reach an agreement amicably, there are several options available to help you reach an agreement without the need to issue court proceedings. This is often referred to as ‘alternative dispute resolution’ or ‘non-court dispute resolution’. The options can include instructing solicitors to help with the negotiations. This can include solicitors who work collaboratively — attending mediation or hybrid (solicitor-assisted) mediation, arbitration and private financial dispute resolution hearings, as well as early neutral evaluations.