Navigating the complexities of divorce and financial remedy can be daunting. This guide aims to provide you with an overview of the divorce process in England and Wales, how finances are connected, and the various ways these matters might be navigated.
To file for divorce in England and Wales, you must have been married for at least 12 months. As of 6 April 2022, the no-fault divorce law allows couples to divorce without assigning blame, based solely on the irretrievable breakdown of the marriage.
The process begins with submitting a divorce application, either individually or jointly with your spouse. This can be done online or via paper using Form D8. Your marriage certificate is required to proceed. If you do not have this, we can help you to obtain a copy.
Once the application is submitted, your spouse will receive a copy along with an Acknowledgement of Service form, which they must return within 14 days.
A mandatory 20-week reflection period follows the submission, allowing couples to consider reconciliation or make practical arrangements for the future, such as child arrangements and maintenance, and how to manage the division of any income, assets, pensions and debts.
After the reflection period, you can apply for a Conditional Order, which is the first legal step towards finalising the divorce. The court will issue a Certificate of Entitlement if the application is approved. It is extremely rare for this to be refused when the divorce is applied for properly.
Following a six-week cooling-off period after the Conditional Order, you can apply for the Final Order, which legally ends the marriage. It is advisable to finalise financial settlements before applying for the final order.
The division of assets is a crucial aspect of divorce. The general principle is an equal division, but the overriding factors of ‘fairness’ and ‘need’ may influence the final settlement. For example, where 50% of the assets is not enough to provide for one of the separated parties, fairness and need might dictate an inequal split.
To ensure that you can make an informed decision about what is a fair division, both parties should fully disclose their financial circumstances, typically through Form E. Negotiations can occur directly, through mediation, or our specialist teams’ assistance.
If an agreement is reached, it should be recorded in a consent order and approved by the court to make it legally binding. This prevents future financial claims by either party. We can prepare the court order for you, as this needs to be done through a Solicitor to prevent it from being rejected by the court and submit the application appropriately.
If an agreement cannot be reached, either party can apply to the court for a financial order which is done on a Form A. The court will then decide on asset division, considering factors such as income, earning capacity, property, and financial needs. Sometimes expert reports are required such as property valuations, pension reports, business valuations and tax reports.
Court proceedings usually involve a first hearing called an FDA, a dispute resolution hearing called and FDR and where matters do not settle a Final Hearing at which parties usually give evidence before the Court makes a binding decision.
The Courts are now actively promoting Non Court Dispute Resolution (NCDR) and will regularly suspend proceedings to send parties away to attempt NCDR before hearing a case.
NCDR includes:
Mediation involves an independent third party assisting both parties to reach a resolution. It is a legal requirement to attend a Mediation Information and Assessment Meeting (MIAM) before applying to the court.
Arbitration is a non-court dispute resolution method where a neutral third party makes a binding decision on financial matters.
Collaborative law involves both parties and their solicitors working together to resolve financial issues without court intervention.
A private FDR process involves a neutral third party evaluating financial matters and helping the parties reach a resolution.
Our expert team can discuss with you and advise on whether any of these processes would be beneficial to your case and if so, refer you to the right place for you.
For more information and explanation see our blogs ‘How can BWS Law help with your Divorce/Dissolution application?’, ‘What is a financial consent order and how do I get one’, ‘What is the difference between voluntary and court disclosure in financial remedy, what are the benefits and why do I need to do it’, ‘What is a costs order in financial remedy’, and ‘What is the difference between fairness and equality’.
Resolution is an organisation committed to following a non-confrontational and constructive approach. The Code of Practice promotes a constructive approach and considers the whole family, in particular the children.
Let us help you navigate the legal landscape with confidence and care. Contact us for a free initial telephone call today.
