Types of orders
The court has the power to make orders for a spouse including:
- Periodical payments (maintenance)
- Secured periodical payments (maintenance that is charged against an asset)
- Lump sum payments
- Property adjustment orders (transfer legal ownership of an asset)
- Pension attachment/pension sharing orders
Reaching a settlement
The majority of financial settlements are agreed after negotiation. Regardless of the form of negotiations, the criteria utilised by the court are key in setting out the parameters for any settlement. It is firstly important to have full and frank exchange of financial disclosure of both parties. The terms of settlement needs to be broadly fair in light of all relevant circumstances. There is not a presumption for an equal division of assets and many factors may mean this would not be a fair outcome.
An agreement needs to be made into a consent Order and approved by a court to be final and legally binding following decree absolute/final order. The court does not need to be involved in exchange of disclosure and negotiations, even when assets are complex and/or expert valuation is required. It is only the minority of settlements that are determined by the court after a contested hearing and there are many alternatives to try prior to this.
Financial remedy proceedings
It may be that a negotiated settlement is not possible and it becomes necessary to commence court proceedings, known as financial remedy proceedings. The court process is designed to ensure there is full exchange of financial information and encourages the parties to reach agreement where possible and a Judge making a decision on division is the last resort.
We have set out below the process of those proceedings
Issue of proceedings - the applicant issues a Form A with the court to begin the process. We can prepare this for you and advise of the court fee. Once the application is lodged at court, we will need to serve any relevant mortgage providers or pension companies where appropriate
The court will timetable the case with:
Date to file and exchange financial statements (known as Form Es)
Date to file and exchange questionnaires (questions asked of the other side for further information, a statement of issues and a chronology (detailing relevant dates). This will normally be 14 days before the first directions appointment (FDA)
A date for the FDA hearing
At the FDA the objective is for the judge to determine what, if any, further information is required from either party to complete the disclosure requirements and also whether any other directions are needed, for example the valuation of assets and expert information. The judge will also if appropriate provide opportunity for and encourage negotiations. If a settlement is not reached the judge will also set a date for the financial dispute resolution appointment (FDR)
Once any further information directed has been served, each party is then obliged to make proposals for the settlement and they should be send to court prior to the FDR. The FDR is a court-led negotiation hearing. The majority of cases settle at or shortly after if not before this hearing. A judge will not be able to impose an order but will encourage negotiations and if an agreement is reached, the judge can approve the same
If settlement is not possible, then a final hearing will be required. If the court does decide your case, the judge will strive to reach a “fair” outcome, taking account of certain statutory factors. The judge will also listen to each party’s reasons for a particular outcome and hear evidence in order to reach a decision
Financial agreement and settlement FAQs
What am I entitled to if I divorce my husband or wife?
If your marriage breaks down, so you decide to divorce, there are no absolute rules dividing assets in a divorce in the UK. However, there are some principles that are usually followed and it is important that a financial settlement is deemed ‘fair’ to both parties taking into account all circumstances.
How much money will I receive in the settlement?
There is no set formula for calculating financial settlements or orders. Instead, the court has a very wide discretion as to what orders it can make when assessing financial settlements. The courts take a large range of factors into account including any child, needs of the parties, resources, the length of your marriage and your respective contributions. We can advise you on how these factors apply to you.
What am I entitled to in a divorce settlement if all assets are in one partner’s name?
The division of assets in a divorce can be a complex area. For example, if one partner entered the marriage already owning a property, and that property was then the marital home, the other partner may have a claim to at least a portion of its value, even if they are not named on the title deeds or mortgage. How a house is divided in divorce, or how any other assets are split, will depend on a wide variety of factors. Get expert legal advice now by getting in touch with the team at Stephensons today.
What should I do if I find out that my husband or wife is getting rid of assets?
You should seek immediate legal advice as it is possible to apply to the court to freeze your spouse's assets or to get things back if they have already been sold.
What do I do if I am worried my husband or wife will not provide full disclosure of their assets?
It is very important that there is a full exchange of financial disclosure. An individual may try and frustrate this and provide incomplete of misleading information. We are able to recognise the signs of non-disclosure and devise proportionate strategies to deal with this.
In some cases, either party may deliberately dissipate assets or attempt to remove them from the country. It may be necessary to get an injunction to stop such action and safeguard assets until a financial settlement can be reached.
What happens to my pension rights on divorce?
A pension is considered an asset within divorce. There are various different options when it comes to dividing a pension and who has a claim for what. It can be a complex area and it’s recommended that you seek expert advice from a family law solicitor to ensure that you have all the information you need for your individual circumstances.
Do I need a solicitor if we have agreed a financial settlement between ourselves?
It is always advisable to have the agreement which you have reached embodied in a financial consent order to prevent your husband or wife from changing their mind and making further financial claims against you in the future.
How is a house divided in a divorce?
Unlike some other assets, a family home can be treated differently in a divorce settlement agreement, especially if children are involved. The courts will always look at what is in the best interests of children first and may issue a property adjustment order as part of the financial settlement between parents.
Can I obtain a financial court order even if we decide not to get divorced?
Unfortunately, if there are no proceedings relating to the marriage then it is not possible to obtain a court order. However, it is possible for the financial agreement reached to be incorporated into a separation agreement.
Is a prenuptial agreement the same as a court order?
Prenuptial agreements are still not legally binding under English law. However, they are increasingly being considered and upheld by the courts where they have been properly prepared and provided both parties have taken separate independent legal advice and the terms within the agreement are fair and reasonable.
What do financial orders mean in divorce?
Getting a financial order in divorce settlements is the only way to ensure that any financial obligations between you and a former spouse are legally settled. A financial order is an arrangement under which a couple’s assets and financial affairs are separated upon divorce.
On a divorce, nullity, judicial separation and dissolution of civil partnership, the court has power to make an order for financial settlement. The court does not have the power to make a capital order or a final financial order until a decree has been pronounced, but can make an order for interim maintenance with effect from the date of the petition.
Why do I need a court order?
It is important to ensure that your divorce financial settlement is recorded in court order, otherwise financial claims could be brought against you, regardless of how long ago the divorce took place. There is no time limit on making these claims. It is only with a binding court order setting out the arrangements and dismissing each party’s claims against the other (a clean break) is made that you can be certain to achieve finality.
How long will it take to get my financial settlement?
If there is an agreement, then the court should be able to make your court order any time from the pronouncement of the Decree Nisi, though it will not take effect until the Decree Absolute. This process normally takes between 6 and 8 months from start to finish. However, if you are not in agreement, and particularly if your spouse is not willing to disclose their financial position, then it can take much longer; up to 12 to 18 months or more.
How do you split assets in a divorce?
There is no set formula as to how assets should be split. Certain criteria has to be taken into account when negotiating a financial settlement. How this is applied, varies according to the circumstances of each case and case law. This will all be balanced by the court when determining a settlement.
Where family’s resources do not meet both spouses’ needs, the needs of the economically weaker spouse (often the primary carer for any children) are usually given higher priority in allocation of resources – this is the needs approach.
On a lengthy marries, where there is a surplus of assets, a proposition of equal division based on contribution is often considered the fairest.
What will my financial settlement include?
A settlement can comprise of three main elements; periodical payments (maintenance), capital orders (lump sum and/or transfer of property) and long term security (pension attachment and pension sharing orders, provision of life insurance).
What is a clean break?
In some cases, all three elements are bound together in a one-off settlement and neither party can make further claims against the other. This is commonly referred to as a “clean break”.
How will my settlement be achieved?
The majority of financial settlements are agreed after negotiation. Regardless of the form of negotiations, including directly between the parties, at mediation and solicitor-led negotiations, the criteria utilised by the court are key in setting out the parameters for any settlement. It is firstly important to have full and frank exchange of financial disclosure of both parties. The terms of settlement needs to be broadly fair in light of all relevant circumstances. There is not a presumption for an equal division of assets and many factors may mean this would not be a fair outcome.
Can you settle financially before divorce?
A financial settlement is available at any time during the divorce proceedings, so after the divorce has been finalised or even before. In most divorce cases, a financial settlement can be agreed (and settled by a judge) at the same time as divorce proceedings. Whenever you choose to get a financial settlement, it is advised that a divorced couple seeks one before either party decides to re-marry.
Is there a time limit on divorce settlement?
There is no time limit on a divorce settlement. It’s important, however, to be aware that once Decree Absolute has been granted, the financial claim still remains open, so getting a financial settlement and dividing assets in divorce in the UK, as soon as possible, is advised.
Can you get a divorce without a financial settlement?
You can but it is not advised. Even if there are no assets to split, it is recommended that a financial settlement is reached to avoid problems later down the line.