When parties separate, the process of filing for divorce can feel emotionally and practically daunting. It is therefore crucial for separating spouses to understand the divorce process so that they can navigate it confidently and protect their interests post-separation. This guide provides an overview of the key stages and what to expect.
Divorce v financial settlement
It’s important to note that divorce, the formal ending of a marriage, is a separate legal matter from the division of marital finances. While the two are undoubtedly connected, the court deals with them through different procedures.
Application for divorce
The first step in divorce proceedings is to file an application for divorce with the court. Following a change in the law in April 2022, the process of filing a divorce application has become much more straightforward. Parties no longer have to assign blame or provide evidence of the relationship breakdown. Instead, they simply indicate an irretrievable breakdown of the marriage, also known as the “no fault” divorce procedure. A Court fee of £593 is payable.
The applicant has the option to proceed with an application on a sole or joint basis. The joint application requires both parties to agree on its contents before filing, which can reduce hostility and promote cooperation. However, it is not appropriate in all situations, for example, if the responding spouse cannot be located or there is a history of domestic abuse.
Timeline
For sole applications, the respondent must respond within 14 days of filing. Once this is done or if the parties have filed a joint application, the timeline is as follows:
- There is a 20-week holding period before the parties can apply for the first court order, called the conditional order (previously known as the Decree Nisi), which confirms the original application remains accurate and that the applicant still wants to proceed.
- 6 weeks after the court grants the conditional order, you can apply for the final order (previously referred to as the Decree Absolute) to legally end the marriage.
Dealing with the matrimonial finances
Parties should aim to obtain a court order known as a Consent Order setting out how they will divide their assets and income and to prevent either spouse from making future financial claims against each other after the divorce.
Financial disclosure
To achieve a fair settlement, parties must provide each other with full disclosure in relation to their current and expected financial positions for the next 12 months. This can initially be done voluntarily.
Parties are usually expected to provide financial disclosure using a document known as a Form E, which is a detailed financial statement containing details of all their assets, liabilities and income. The court expects parties to provide ongoing “full and frank” disclosure by providing each other with updated, accurate information to ensure any settlement meets their respective needs.
Mediation and negotiation
Mediation and negotiation are two forms of “alternative dispute resolution” (ADR), a method of resolving disputes outside of court. They can both be effective ways to settle disputes in relation to the matrimonial finances more efficiently, at a lower cost, and with reduced animosity.
Negotiation
Negotiation involves the parties engaging in discussions to narrow the issues and reach an agreement. They can speak directly or via their legal representatives.
Parties can undertake negotiations in various ways, such as written correspondence, in-person meetings, or telephone calls. Either way, keeping a record of the conversations is essential, as they may need to be relied upon at a later date.
Mediation
Mediation is a voluntary process whereby the parties instruct a neutral third party to assist them to attempt to agree a settlement.
Before commencing financial proceedings, the court expects the parties to explore mediation by attending a Mediation Information and Assessment Meeting (MIAM). Although mediation is advisable, the court understands it is not appropriate in some cases, for example, a financially abusive relationship. In such cases, parties can claim an exemption from mediation.
Mediation is conducted “without prejudice”, meaning the parties generally cannot refer to any mediation discussions in court. However, parties should still keep clear records as there are certain situations where they can rely on them, such as when the court is making a legal costs order.
Finalising a settlement agreement
A financial agreement will only legally bind the parties once it is approved by the Court. For settlements reached out of Court, there are three things the parties must file for a judge’s review:
- Form A: the application to inform the court that the parties wish to have a financial order;
- A draft consent order detailing the terms of the parties’ agreement; and
- Form D81: a statement summarising the parties’ financial positions. It is less detailed than a Form E, but the court requires it to ensure the order represents a fair settlement.
The court will either approve the order or return it to the parties with further questions. The judge may also require the parties to attend a short hearing to clarify their agreement before approval.
Court hearings
The process of legally ending a marriage does not usually require the parties to attend a court hearing. A judge will simply pronounce the conditional and final orders without the parties’ presence. If parties are unable to agree a financial settlement, either by way of negotiations or mediation as above, either party can commence financial proceedings at any point after the court issues the divorce application.
In terms of financial proceedings, there are usually three main hearings:
- First Appointment (FA)
The hearing is utilised to understand how far along the parties are in providing financial disclosure and narrowing the issues. The parties will be encouraged to settle in more straightforward cases. If this is not possible, the court will order directions with the aim of putting the parties in a position where they can settle at the next hearing.
- Financial Dispute Resolution Appointment (FDR)
This hearing involves a judge assessing the parties’ finances and hearing their respective positions.
The judge will indicate the type of settlement the court will order if the matter proceeds to a final hearing and directs the parties to leave the courtroom and to engage in further discussions to attempt to settle. An FDR often requires the parties to be at Court for at least half a day. Most cases will settle at an FDR. Negotiations can often take place after the FDR with both parties usually wishing to avoid a final hearing.
- Final Hearing
A final hearing will take place if the parties have not been able to reach a settlement at the FDR or thereafter. At a final hearing, a judge will hear detailed witness evidence from the parties and any additional witnesses. The parties can challenge each other’s evidence, and at the end of the hearing, the judge will decide how the matrimonial finances should be divided. The judge’s decision is final, although parties can appeal in limited circumstances.
A final hearing can become very expensive and time-consuming and tends to only be necessary in high-value, complex cases.
Complying with a financial order
After the parties obtain a financial order, they must comply with its terms within the relevant deadlines, for example:
- Transferring the legal title of a property to the other spouse.
- Transferring part of a pension.
- Setting up spousal maintenance payments.
- Removing one spouse’s name from the mortgage on the family home.
Other considerations following Divorce and financial order
Other matters the parties should consider following a Divorce are:
- The care arrangements for any children of the marriage. Whether such arrangements can be made amicably or whether further advice is sought in this respect.
- Preparing a new Will.
- Changing their surname.
Legal support during a divorce
Parties are not obligated to instruct a solicitor to assist them through the divorce and the process dealing with the matrimonial finances. However, the law can be complex, so seeking independent legal advice can be invaluable. A solicitor will protect their client’s interests while providing much-needed emotional support during an often very difficult time.
Our specialist family lawyers are here to help. Contact us today for more information or to book an initial consultation.
