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protecting your financial position before applying for a final order in divorce

Have you protected your financial position before you apply for a Final Order in Divorce?

Fahmida Miah, a solicitor in Comptons' Family Law team talks about the importance of protecting your financial position before applying for a Final Order in Divorce.

Pre 6th April 2022, spouses wishing to divorce, would need to satisfy the Court that the marriage has irretrievably broken down and substantiate that with one of the five facts of divorce including adultery, unreasonable behaviour, separation with 2 years consent, 5 years separation or desertion. Since 6th April 2022, spouses and civil partners have been able to apply for a Divorce without attributing blame to the other. This change was introduced by the Divorce, Dissolution and Separation Act 2020. The idea behind the landmark reform of ‘no fault divorce’ was that if parties are not attributing blame from the outset, they may be more amicable when dealing with the more important matters when it comes to divorcing which are children arrangements and dividing the matrimonial assets.

With the introduction of the HMCTS portal which allows litigant in persons to apply for a divorce online, it has made getting divorced a whole lot easier. The portal is easy to use and with the number of questions in a divorce application now being reduced to a few, it is very litigant in person friendly. This may explain the increasing numbers of divorce applications since the no fault divorce came into action in April 2022. However, though divorce applications have increased there has been a worrying decline of 31% in the number of finance applications between April to June 2022.

It seems that couples that are embarking on amicable divorces may be neglecting the need to protect their financial positions which can place their assets at risk. When divorcing it is standard practice to delay the application for a Final Order until a Financial Order has been obtained. A Financial Order can be obtained by consent or determined by the Court when parties fail to reach an agreement. A Financial Order will also commonly set out that parties have no further claims against each other’s assets in the future. Without this Order, parties will be at risk of the other party making a claim against their assets/ income at a later date.

There are some other pitfalls to applying for a Final Order without obtaining a Financial Order:

  • If you re-marry after the divorce, you may lose some or all of your rights if you later wish to claim from your former spouse.
  • If you are in the process of negotiating a financial agreement with your spouse, and your spouse passes, you will be entitled to widow/widower’s benefit, so it is important you delay applying for the Final Order until you have received the certainty of a Financial Order from the Court.
  • If the agreement you are negotiating, includes a Pension Sharing Order, the Order cannot be implemented by the pension provider until you have obtained the Final Order. However, you should wait 28 days before applying for the Final Order because the PSO is not enforceable until 28 days lapses.
  • If you obtain a Final Order before resolving your matrimonial finances, you could be subject to taxes upon transfer of any assets later. In the UK, the tax regime often exempts tax on transfers between spouses so it may be beneficial for you to remain married whilst settling any transfers.

It is important for you to seek advice from a legal professional regarding your rights upon divorce even if you and your spouse are divorcing on amicable terms. Here at Comptons, we provide bespoke advice to our clients to meet their individual circumstances. We try assisting couples with reaching a financial settlement without having the need to recourse to long-protracted Court proceedings where possible to keep your costs low.

Contact our divorce lawyers for expert advice on divorce. 

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About the Author
Fahmida Miah, Solicitor, Family Law

Specialises in: Family Law

If you would like more tailored advice regarding your rights upon divorce, please contact our Family Law Solicitors, Kiran Reyat and Fahmida Miah on 020 7485 0888, by email on /  or complete our online contact form.