Final Order in Divorce proceedings and Final Order in respect of Matrimonial Finances

There can be some confusion when getting a divorce, that once the final order in the divorce proceedings has been granted by the court, that this resolves everything between the former spouses, including their finances.

Unfortunately, this is not the case, it is important to note that your divorce proceedings and your matrimonial finances are dealt with separately. The divorce only legally ends the marriage. This means that in most circumstances your financial claims as a result of the marriage remain alive until you obtain a final order from the court in relation your finances. This could either be by agreement(Consent Order) or by issuing Financial Remedy proceedings and asking the judge to make a final order.

It is important to give careful consideration to your financial claims before you choose to proceed with obtaining your final order in divorce, as once you have divorced you may also loose certain rights and benefits which would have been afforded to you as a spouse.

You should seek legal advice as to your circumstances and the process if you are unsure, particularly if you are considering re-marrying without having resolved the financial matters from your previous marriage. 

When should I consider resolving my financial matters?

The answer is simple, at the point you decide to separate but certainly once you have issued divorce proceedings.

The mandatory 20 week ‘cooling period’ in divorce proceedings between issue of the application and application for conditional order(relevant to all divorce applications submitted after the ‘no fault’ divorce legislation came into effect on 6 April 2022), allows the spouses time to reflect on their decision to divorce as well as their financial circumstances and any child arrangements that need to be made.

Regardless of the value of any matrimonial assets an order should be sought to ensure that all future financial claims by both parties are dealt with and or dismissed (a clean break) prior to obtaining a final order in your divorce. 

What factors does the court consider?

As a result of your marriage, you and your spouse have the right to bring certain financial claims against each other. This can include(but is not limited to) property, land, pensions, savings, investments and income.

The court will always consider section 25 (2) (a-h) Matrimonial Causes Act 1973 when determining any financial order to ensure it is fair and meets the needs of the parties which includes:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

The important thing to understand is that each case is looked at on its own facts and that the Court has a great deal of discretion in how they deal with financial cases.

What if I can’t seem to reach an agreement about finances with my spouse?

Before reaching an agreement with your spouse you should seek independent legal advice to ensure that the terms of any proposed settlement are in your best interests.

There are also several forms of Non-Court Dispute Resolution (NCDR) which parties can agree to participate in such as mediation, arbitration, collaborative law and early neutral evaluation which may be able to avoid parties ending up in contested court proceedings. Please see our recent blog The importance of considering Non-Court Dispute Resolution (NCDR) – Jordans Solicitors for more detail on the importance of NCDR and the change to the Family Procedure rules.

If NCDR is unsuccessful then an application can be made to the court for financial relief, where the court will ultimately determine how the finances should be resolved if parties are still unable to reach an agreement once in proceedings. 

Do I still have to resolve my finances if we don’t have any assets?

Even if you believe there are no matrimonial assets to be divided, you should consider obtaining a financial order by way of a ‘clean break’ consent order. In short, the order will provide that neither of you will make any financial claims against the other arising from the marriage either in life or in death. 

The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Jordans Solicitors accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Jordans Solicitors accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Jordans Solicitors of any content, products or services which are outside our direct control.