You don’t have to apply for a financial order to obtain a divorce in England and Wales, however, it is advisable for separating couples to resolve existing or potential financial issues during the divorce process and a financial order is the best way to achieve this.
In this post, we explain:
- How a financial order works.
- Why it’s important to address financial matters during a divorce.
- How to go about getting a financial order.
What Is a Financial Order?
A Financial Order is made by the family court, and it sets out the separation of your finances and the division of your assets. This may include:
- Properties
- Vehicles
- Pensions
- Savings
- Investments
Additionally, spousal maintenance may be incorporated into a financial order. Child Maintenance is usually dealt with via the Child Maintenance Service (CMS) but in some circumstances can be included in a financial order.
What’s the Difference Between a Divorce and Financial Order?
A divorce refers to the dissolution of a marriage, but it doesn’t actually relate to shared property or finances. This is decided separately, via a financial order. Although the divorce and financial order are separate, they are often dealt with at the same time.
Are There Different Types of Financial Orders?
Yes.
The technical term for a financial order is a ‘financial remedy order’ but, in practice, this term refers to two types of order.
The first, sometimes known as an ‘ancillary relief order’ or ‘contested financial order’, is issued by the court when the parties cannot agree on how their finances should be split. Essentially, the court will decide how the parties’ property and finances will be arranged and issues an order accordingly.
A ‘financial consent order’ is made when both parties agree on how to split their finances. Once the order has been drawn up, it is sent to the court for approval and sealing, so that it becomes valid and enforceable.
In rare cases, a court may not approve a financial consent order but, in most instances, the parties can arrange their own financial settlement when they are in agreement with one another. It is a good idea to have a final consent order even if it simply records neither party can make any financial claim against the other in future. Without this, it is possible a claim could be made many years later.
Can I Apply for a Financial Order After Divorce?
If you have got divorced without making a financial order, you can apply to the court for a financial order after the divorce is finalised, although if you have re-married , it may be the orders you can apply for are limited.
If you obtained a financial order while the divorce process was ongoing, it is highly unlikely you will be able to apply for another order or a modification of the order.
Is There a Time Limit for Applying for a Financial Settlement?
There is no time limit when it comes to obtaining a financial settlement after a divorce. In fact, this is one of the reasons couples are encouraged to resolve financial matters during the divorce process.
If you don’t obtain a financial order while you’re in the process of getting a divorce, your ex-partner can apply for a financial order at any time afterwards. This may make it difficult for you to get on with the next chapter in your life and could mean that you’re faced with complex financial challenges months or years after the divorce was finalised.
When a financial order is issued, it typically includes a ‘clean break’ clause. This prevents your ex-partner from making subsequent financial claims against you. As a result, you’ll have peace of mind that you won’t face ongoing legal action or claims on future income or assets you may accrue.
How to Apply/Make a Claim for a Financial Order in Divorce
If you wish to apply for a financial order in divorce there are multiple steps to follow, including:
1. Consider Mediation
Before applying for a Financial Order, you must attend a Mediation Information and Assessment Meeting (MIAM) to determine if mediation is a viable route to resolving financial matters between you and your ex-partner. If you need to proceed with legal action, you will then submit an FM1 form with your application to confirm you have attended the MIAM meeting.
2. Submit a Form A
A Form A is a notice of your intention to seek a financial order. Although you can submit a Form A at any point after the divorce application has started, the court won’t make a financial order until a conditional order of divorce (previously known as a ‘decree nisi’) has been issued. It is usually best to delay applying for the final order of divorce (previously known as ‘decree absolute’) until after a financial order has been made by the court.
3. The Court Issues an Order
This sets out the schedule for subsequent steps and requires both parties to disclose their financial situation.
4. Financial Disclosure
Form E is a lengthy document that requires you to provide detailed information regarding your finances, along with supporting evidence. This enables the court (and the other party) to determine how shared finances should be split and what constitutes an equitable division of assets. You must submit your Form E in accordance with the specific deadline issued by the court.
5. Attend First Appointment
This is a short court hearing at which the judge checks what financial information is still needed and how best it can be obtained. This will include any expert reports/valuations. The judge gives “directions” for the next steps to be taken to prepare for the Financial Dispute Resolution (FDR) Appointment.
6. Financial Dispute Resolution (FDR) Appointment
An FDR is a lengthier hearing that is designed to facilitate a settlement being reached. Here, both parties (or their solicitors or barristers) will make representations to the judge regarding financial matters that have yet to be agreed upon.
During an FDR, the judge is likely to encourage the parties to negotiate and usually gives an indication on what the court’s view is on particular issues. The parties (or their legal representatives) are also given an opportunity to negotiate in private.
If a settlement is reached, a financial court order will be drawn up and issued by the court.
7. Final Hearing
If the parties cannot reach an agreement at or following the FDR, the matter will proceed to a Final Hearing (which will be dealt with by a different judge). The court will hear representations from both sides before issuing a financial order.
Successfully Obtaining a Financial Order
As you can see, there are complex legal and procedural issues involved in obtaining a financial order during or following a divorce. Due to this, it’s always advisable to seek legal help with your claim.
To access legal advice and support, contact our Family Services team on 01276 680000 or scroll down and send us a message.
