This guest blog was written by Stowe Family Law, the largest specialist team of family lawyers in the UK. The team includes divorce lawyers, forensic accountants, a dedicated children’s department, an adoption team, surrogacy law specialists, and an international family law department, as well as trained mediators.
At Stowe Family Law, we understand that going through a divorce can be stressful. We are here to guide you through the process and answer any queries you may have to make the process as seamless and amicable as possible.
Below we set out the answers to some common questions we are often asked at the outset.
How do I get a divorce?
The law in respect of divorce changed on 6 April 2022 which means it is now enough to state that your marriage has irretrievably broken down. There is no need to apportion blame on one person or to have been separated for a certain number of years, as was the case under the old law.
An application for a divorce can be done on a sole or joint basis. Once the application is submitted, there is a mandatory 20-week waiting period before applying for the Conditional Order. This allows time for the financial settlement to be discussed.
The Conditional Order is required to be shared with the court when asking them to consider a draft financial settlement.
6 weeks and 1 day after the Conditional Order has been granted, the application for a Final Order can be made. Once granted, this legally ends your marriage. It is often best to avoid applying for the Final Order until the financial matters have been agreed.
Does the fact that divorce proceedings have started mean that the court will address our financial settlement at the same time?
In short, the answer is no. Divorce and financial settlements are two separate processes which typically run alongside one another. You are legally divorced once the Final Order in the divorce process has been granted. This does not however deal with the financial claims that you and your ex-spouse have against one another.
You will have to take additional steps over and above the divorce process itself to dismiss the financial claims you have against each other by having a financial consent order drawn up which is discussed below.
How do we sort out the financial issues upon divorce?
A divorcing couple have claims against one another for capital (such as equity in the family home, money in bank accounts, shares and investments etc), spousal maintenance and pensions. You and your partner will need to exchange financial disclosures. This will allow you both to have a clear understanding of the financial landscape to be in a position to make an informed decision as to a possible settlement.
What is financial disclosure?
Financial disclosure is the exchange of documents that clarify your financial position as part of the divorce process. It involves a full breakdown of your individual and joint financial situations, along with evidence, such as bank statements and pension valuations.
Both parties must provide full and frank financial disclosure of assets and debts before entering financial negotiations and agreeing on a settlement.
What happens if we can’t agree on a financial settlement?
There are a number of ways in which you and your ex-spouse can reach an agreement as to the financial settlement. The court has a focus on Non-Court Dispute Resolution (NCDR), which means seeking to settle matters voluntarily without recourse to court proceedings.
If you continue to have an amicable relationship, you may find that you are able to have direct discussions with your ex-spouse to reach an agreement. If you choose this route, you should ensure that you have exchanged financial disclosures with one another to satisfy yourselves as to the assets available for division.
Mediation is a form of NCDR. Mediation involves a neutral, independent mediator who is trained to help couples resolve disputes without the need to go to court. Mediation is a voluntary process.
Many couples engage in solicitor negotiation whereby correspondence will pass between solicitors with a view to negotiating a financial settlement.
There are other forms of NCDR such as arbitration and a private FDR. If a form of NCDR cannot be agreed upon, one of you will need to apply to the court for a financial order. A judge will then decide how the assets are to be divided.
Do I need a financial order?
In most cases, the answer is yes. Even if you and your ex-spouse agree on how to divide the financial assets, that agreement is not legally binding unless it is made into a financial consent order and approved by the court.
Without this protection, your ex-spouse could make a financial claim in the future, even long after the divorce has concluded. This could affect any savings, property, inheritance or even a business you have acquired or built up after your separation.
It is important to have a financial order in place to provide you with certainty and security, ensuring both you and your ex-spouse can move on with the next chapter of your lives with a fair and final financial agreement having been reached.
It is important that you seek legal advice early on, as every matter is unique and there is no one-size-fits-all approach.
Contact us to discuss your situation
Should you wish to discuss your situation in greater detail, please do not hesitate to get in contact with the team on 0330 159 9867 for a free, no-obligation telephone call to see how we can help you. You may also want to contact us via email and you can do so by contacting Filomena Sterkaj, who is a team leader partner based in the Chelmsford office: Filomena.sterkaj@stowefamilylaw.co.uk