Divorce and Separation

When determining an appropriate financial settlement, the Court’s first consideration will be the welfare of any minor children of the family who have not yet attained the age of eighteen, this does not however mean that their welfare overrides all other considerations. The Court must then consider the various factors set out in Section 25 of the Matrimonial Causes Act 1973, which are: (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; (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.

Interim maintenance is financial assistance paid by one spouse to the other whilst divorce proceedings are progressing. Either party is able to make an application for interim maintenance once the divorce application has been filed with the court. The applicant will need to prove that financial assistance is indeed required from the other spouse in order to meet their income needs; the focus will be on their immediate needs rather than long term requirements.

The Financial Dispute Resolution hearing or “FDR” is the second hearing in standard financial remedy proceedings. The purpose of the hearing is to facilitate productive settlement negotiations between the parties, all on a “without prejudice” basis. After hearing from the parties (usually through their respective barristers), a Judge will provide their “indication” as to what order they would make were they hearing this as a Final Hearing. The Judge’s indication does not bind the parties, rather it is intended to help narrow the issues to assist with settlement negotiations. If settlement proves impossible on the day of the hearing, the FDR Judge will have no further involvement in the case. Instead, a Final Hearing will be listed before a different Judge who has not heard the indication or any of the without prejudice concessions either party may have made. The aim of the FDR is to promote settlement and to provide the parties with agency over their settlement terms rather than have a judge at Final Hearing force an outcome on them.

Both the capital value of any business that a spouse has an interest in, and the income it generates will be taken into account on divorce. How the business is treated on divorce will depend on the other assets in the case and how dependent the couple are on the income from the business to meet their outgoings. Businesses are dealt with in different ways depending on the circumstances of the case.

Decree Nisi is the first main stage of the divorce and when it is pronounced, it is confirmed that the Court do not consider there to be any reason why the divorce cannot proceed. 43 days after the pronouncement of Decree Nisi, the petitioner is able to apply to the Court for Decree Absolute. For Divorces filed after 1 April 2022, a Conditional Order will be received instead of a Decree Nisi and a Final Order instead of Decree Absolute.

The parties’ pensions will be considered in financial proceedings. Each party is required to give financial disclosure, including their pension values. It is possible to argue that a pension or some of a pension should not be taken into account and shared for various reasons, however the value and type of the pension will need to be disclosed. Whether the pension is shared will depend on the circumstances of your case.

For divorces filed before the 1^st April 2022, a Decree Absolute will be received upon finalisation of divorce. For divorces filed after 6^th April 2022 a Final Order will be received upon finalisation of the divorce, these are the one and the same. A Final Order would not ordinarily be applied for until financial matters have been resolved, so how soon you apply for a Final Order will depend upon how swiftly a financial agreement is reached. The earliest you can apply for a Final Order is a statutory period of six weeks and a day after the pronouncement of the Conditional Order. Once the application for a Final Order has been filed with the Court, it is usually pronounced within a couple of days.

Provided the divorce is undisputed, the process takes a minimum of 20 weeks between the filing of the application and the conditional order (formerly Decree Nisi). From the date of the Conditional Order, 43 days (six weeks and a day) must pass before the Final Order can be applied for (formerly Decree Absolute).