Here at Spectrum Law, we offer expert assistance in all aspects of divorce and civil partnership dissolution in England and Wales.
Divorce or Civil Partnership Dissolution in England and Wales
England and Wales operates a ‘no fault’ system for both divorce and dissolution for applications issued on or after 6 April 2022.
Grounds for Divorce or Dissolution
The sole ground for divorce or dissolution is that the relationship has irretrievably broken down.
Process
- Issuing the Application: The first step is for your application for divorce or dissolution to be issued at court. Your marriage certificate and a court fee are required. If you bring the application, you are known as the Applicant. If you bring an application together, one of you will be called Applicant 1 and the other Applicant 2.
- Service and Acknowledgment: The court serves the application on your spouse/partner, usually by email and post. In some circumstances, alternative arrangements can be made by the Applicant. Your spouse/partner will be known as the Respondent. They must return their acknowledgement of service to the court. An acknowledgement of service form must also be completed if there are joint applicants.
- Disputing Proceedings: There are limited options to dispute proceedings, primarily on jurisdictional grounds or if there is a dispute about validity, fraud, or procedural irregularity.
- Conditional Order: Assuming the proceedings go ahead on an undefended basis, the Applicant (if a sole application), both Applicants in a joint application, or in some circumstances a sole Applicant (if proceedings have been issued jointly), may then apply for the first stage of the divorce or dissolution, called a Conditional Order (previously called Decree Nisi). The application can only be made a minimum of 20 weeks from the date the application is issued. The court reviews the application and, if satisfied that the criteria are met, grants a certificate of entitlement to the Conditional Order and sets a date for pronouncement.
- Pronouncement of Conditional Order: The Conditional Order is pronounced in open court and a copy sent to both parties. From this stage onwards, the court has the power to make financial orders if asked.
- Final Order: Six weeks and one day after the Conditional Order, the Applicant (or joint Applicants) may apply for the Final Order (previously called Decree Absolute). If they do not, the Respondent may apply. The Final Order is made and sent to both parties. The Final Order terminates a marriage or a civil partnership. It does not sever financial links between the parties.
Online Divorce or Dissolution
It is possible to obtain a divorce or dissolution through an online service provided by the court service. In some circumstances, the court may require a paper application.
Disputed Divorce or Dissolution
There are now very limited opportunities to dispute a divorce or dissolution if you do not accept that the marriage or civil partnership has irretrievably broken down. To do so, an answer must be filed within a limited time frame from service of the application. It is important to note that, save for the pronouncement of conditional orders, undefended applications are private. By contrast, defended divorces are heard in public proceedings. There are also cost consequences of defending divorces or dissolution proceedings. The procedure requires specialist advice.
Effect of a Final Order
A Final Order terminates your marriage or civil partnership. Once you have a Final Order, you are free to remarry.
It also affects inheritance under a will. You should review your will after a Final Order as some or all of its provisions may no longer be valid after divorce or dissolution.
A Final Order does not terminate your financial rights and responsibilities against or towards your former spouse/civil partner. Financial issues have to be considered and addressed separately in a court order to achieve finality. This can be done by consent, utilising a number of different dispute resolution options, or through the court.
It may be prudent to apply to the court to delay an application for a Final Order until a financial settlement is resolved. Advice should be taken.
Nullity
In certain very limited circumstances, it is possible to obtain a declaration that the marriage or civil partnership was void or voidable. This is a complex area of law and highly fact-specific. If you consider this may be relevant to your circumstances, you will need to take specialist advice, which we would be happy to assist with.
As with a disputed divorce or dissolution, this process is heard in open court.
Religious Marriages and Divorces or Dissolutions
A legal divorce or dissolution does not fulfil the requirements of a religious divorce or dissolution, which are specific to the religion in question and must be dealt with separately, in addition to a legal divorce or dissolution. Equally, fulfilling the criteria to obtain a religious divorce or dissolution alone will not mean that you are legally divorced or that the civil partnership is dissolved. Specialist advice may be necessary.
Judicial Separation
If you do not wish to divorce or dissolve your civil partnership but do require a formal legal separation, you can apply for a judicial separation. The process and legal implications of a judicial separation are different from divorce and dissolution. Most significantly, your marriage or civil partnership is not terminated by a judicial separation.
Whether it is advisable to opt for judicial separation instead of a divorce will depend on your particular circumstances, upon which you will require advice.
Financial Matters
Financial Settlements
Whether your only asset is the equity in your home, or you have a complex portfolio of trusts and investments, our family law experts have the in-depth expertise to guide you through the process, including issues around:
- Property (UK and international)
- Family businesses
- Partnerships
- Interests in companies, including share options
- Pensions
- On and offshore trusts
- Digital assets including cryptocurrency
- Worldwide assets
You may have already reached an outline settlement with your spouse or civil partner, or you may want our initial opinion before starting negotiations, perhaps handling the negotiations yourself.
Some clients prefer to take a collaborative or mediated approach, reaching agreement through transparent negotiations, while others are looking for legal representation to advise and guide them and protect their interests at court hearings or injunction applications.
If your marriage or civil partnership has already been dissolved, we can advise you on the possibility of reviewing your maintenance payments. And if you divorced or separated overseas, we can explain how it affects your situation in the UK.
Whatever your circumstances, we use our experience to find the most cost-effective solution for achieving the outcome you want, while our level of involvement is flexible to suit your specific needs.
If your case requires additional expert advice, such as a barrister, forensic accountant, surveyor, actuary or other specialist, we have an extensive network of tried and tested contacts to call on.
Financial Settlements in England and Wales
Process
There are many different approaches to resolving your finances on divorce or dissolution.
Whichever is adopted, full and frank disclosure of worldwide assets, income, and material information is required. In most circumstances, a valuation of assets will be also be needed.
All agreements should be embodied in a final order approved by the court, ideally by consent.
Which process you choose to adopt to finalise matters will depend on the issues, as well as what best suits you and your circumstances and what may be agreed with your former partner.
The options include:
- Negotiations through solicitors
- Roundtable meetings
- Mediation
- Collaborative law
- Arbitration
- Court proceedings
- Private FDRs
- A combination of two or more of those processes.
Mediation
Mediation involves the joint appointment of an independent mediator or mediators who will meet with you both on one or more occasions and seek to facilitate discussions between you and your partner to help you to agree settlement terms. Those terms should then be embodied in a consent order for approval at court.
Mediation can take a number of different forms and may take place with or without your solicitor present.
Collaborative Law
In the collaborative process, both parties and their solicitors meet in a series of roundtable meetings which are used to address disclosure and valuation of assets and ultimately to reach agreement as to final settlement terms.
A participation agreement which commits all parties to the collaborative process is usually signed, with an agreement not to bring court proceedings. If the collaborative process breaks down, each party must find a new solicitor to represent them if they wish to go to court. If agreement is reached, it is embodied in a consent order for approval at court.
Arbitration
Arbitration is an alternative to the court process in which a jointly chosen arbitrator is chosen to act in place of a judge. The parties choose who they want to make a decision about their case if they cannot reach agreement and can also agree to a process which is adapted to the specific needs and circumstances of their case, including timing. It is effectively a private, and privately funded, court.
The final decision of the arbitrator is binding, although it must be converted into an order by the Family Court.
Court Proceedings
There may be a number of reasons why a court application to resolve financial issues is necessary or appropriate, which will depend on the particular circumstances of your case.
Financial Remedy applications in England and Wales
A financial remedy application is commenced by an application in Form A after a MIAMs appointment has taken place.
The court fixes a timetable which provides for the exchange of disclosure by Forms E and the preparation of other documentation to be prepared in readiness for the first court appointment. The court will order the date for the first appointment.
FDA (First Directions Appointment)
You must attend the first court hearing, a First Directions Appointment (FDA). You will normally be represented by your solicitor and/or barrister.
By the time of the FDA hearing, both you and your partner should have exchanged Forms E. The court will decide what further information, documents or valuations are necessary to assist the court in making a final determination and make orders for directions. The judge will usually list your case to a further hearing which is known as an FDR.
FDR (Financial Dispute Resolution)
You must attend the FDR and will usually be represented by your solicitor and/or barrister. This is a without prejudice hearing and the judge at the final hearing cannot know what was discussed. This is used as a negotiation hearing.
The judge cannot impose a decision on the parties but will encourage them to reach agreement.
Final Hearing
At any point in the court process agreement can be reached and an order made by consent. This brings the proceedings to an end.
If there is no agreement, there will be a final hearing at which both parties and any other experts or witnesses attend and full evidence will be heard by the judge. The judge will then make a decision and final order which will be binding upon the parties.
Appeal
The circumstances in which an appeal against a final order is possible are very limited and will depend on the particular circumstances of the case.
Remarriage Trap
It is possible, although not advisable, to finalise your divorce or dissolution (with the final order) without a final financial order. You are then free to remarry or enter into a civil partnership.
However, if you remarry or enter into a civil partnership without first having made an application for financial remedy, you will not subsequently be able to pursue a financial remedy application against your former partner. It is very important to take legal advice if you are thinking of remarrying or entering into a civil partnership in circumstances where there is no final financial order in place.
Financial Disclosure
There is a duty of full and frank disclosure on both parties to the marriage or civil partnership. This is necessary so that there is a full picture of all assets, income, pensions and liabilities, worldwide, in order to enable the parties to make informed decisions as to appropriate settlement terms. If full disclosure is not forthcoming, any final financial order may subsequently be set aside.
Usually, disclosure is dealt with by completing Forms E and supporting documentation, either voluntarily or in a court process, and exchanging them with your former partner.
Valuations and Expert Evidence
The assets of the marriage or civil partnership must be valued to enable settlement terms to be considered. For many assets that will be the face value. Those assets potentially requiring formal valuation by a third-party expert will include all property (on and offshore), including the family home, company interests and assets, trust interests, digital assets and pensions.
It is possible to agree valuations of some assets, particularly where there is readily available comparable evidence. Others, such as more complex company or partnership structures, or cryptoassets, will require the input of experts. These may be undertaken on a jointly instructed basis.
The types of expert appointed to assist in financial cases vary depending on the evidence requirements of the case but may include accountants, surveyors and pension actuaries.
The Basis for All Financial Orders — S25 Factors
The judge at any final hearing has a wide discretion in deciding how to distribute the assets and income of a marriage or civil partnership. In applying that discretion, he or she will consider what are known as the S25 factors (S25 Matrimonial Causes Act 1973).
In short form summary these include:
- The income and earning capacity of both parties now and in the foreseeable future
- The financial needs, obligations and responsibilities of both parties now and in the foreseeable future
- The standard of living prior to relationship breakdown
- The age of the parties and duration of the marriage or civil partnership
- Any mental or physical disability of either of the parties
- The contributions of the parties to the welfare of the family
- The conduct of the parties (in limited circumstances)
First consideration must be given to the welfare of any child under the age of 18.
Most cases are not decided at a final hearing by a judge. However, the statutory guidelines still underpin and inform any advice on what amounts to appropriate settlement terms when you are negotiating an agreement.
Orders of the Court
The court has power to make a wide range of orders to provide financially for both parties to the marriage or civil partnership including for lump sums, orders for sale or transfer of property of all types including shares, pension sharing orders and orders for spousal maintenance, both during the marriage or civil partnership and after it.
The court can also vary nuptial settlements or trusts, transfer company shares and make orders in respect of overseas assets.
Worldwide Freezing Injunctions and Orders
In certain circumstances, it may be necessary for the court to make orders freezing the assets of one party to protect the party making a claim and prevent assets being transferred out of the jurisdiction and/or beyond the reach of the court.
It may be necessary to act urgently, and we can advise in those situations.
Consent Order
Most people reach agreement on their financial settlement terms through one of the above processes and that agreement is embodied in a document known as a consent order.
For this to be a final order that is binding on all parties it must be approved by a judge at court. This is generally a paper exercise, although the judge needs to be satisfied that a fair and reasonable settlement has been reached.
Costs
Ordinarily, each party pays their own costs of reaching a final, financial order, whether that is by consent or within court proceedings. There are exceptions which are case-specific and on which specific advice would be required.
Pre-Nuptial Agreements
Prenuptial agreements (also known as premarital agreements) can sometimes be considered unromantic but can be extremely important to protect your assets in the event of the breakdown of your relationship. Likewise, a postnuptial agreement to protect assets acquired during the course of a marriage or civil partnership. Our experienced solicitors can guide you through the process.
At the beginning of, or during, your relationship discussions concerning what would happen should matters break down may be difficult to discuss. However, giving thought to such issues at the outset is both a sensible and pragmatic way of protecting yourself for the future, particularly where there may be an imbalance of assets now or anticipated in the future, or you have monies you would wish to ring-fence from a previous relationship.
Should things go wrong, you will have a clear idea of where you stand and there is a documented account of your intentions at the time you married.
Legal Status in England and Wales
Prenuptial and postnuptial agreements are not legally binding in England and Wales as this would require a legislative change. However, they are persuasive evidence in financial proceedings, especially if certain safeguards are adhered to.
The Supreme Court case of Radmacher shifted the balance so that it is extremely likely in the future a prenuptial agreement will be upheld by a court unless it can be shown that doing so would be unfair to the other party in the circumstances at the time of the divorce or civil partnership dissolution.
The Law Commission has also reported on prenuptial agreements and recommended that they should be largely upheld provided that they meet the needs of both parties.
The safeguards that should be adhered to can be summarised as:
- The agreement meets contract law criteria (no fraud, undue influence or misrepresentation);
- The agreement is signed as a deed no less than 28 days before the wedding;
- Both parties must have been informed of its implications, appreciated those implications and considered (and ideally sought) legal advice;
- Both parties have made full disclosure of their assets and resources.