Conditional Orders Explained
If you are going through a divorce in England or Wales, you will almost certainly have come across the term ‘Conditional Order’. It is one of the two key stages in the formal divorce process and understanding what a Conditional Order is, what it means, and what happens next can make the whole experience feel a great deal less daunting.
This blog explains the Conditional Order in plain terms including how it differs from a Final Order and what you should think about before applying for it to be made absolute.
A Conditional Order is a court order confirming that the court sees no legal reason why a marriage cannot be dissolved i.e. you are entitled to the divorce you have applied for. It is the first of two formal orders made during the divorce process and was introduced as part of the no-fault divorce reforms in April 2022 to replace the Decree Nisi under the old law.
The name reflects the nature of the order itself: it is conditional in the sense that the divorce has not yet been finalised. The marriage is not dissolved at this point. That only happens when the Final Order (formerly known as the Decree Absolute) is granted.
It is worth being clear on this distinction, because it is a question we are often asked: a Conditional Order does not mean you are divorced. You remain legally married until the Final Order is made.
Under the current no-fault divorce process, the steps for obtaining a Conditional Order are as follows:
The 20-week waiting period was introduced as part of the no-fault divorce reforms. It was designed to give couples time to reflect on their decision and, where relevant, to reach agreement on financial and child arrangements before the divorce is concluded. It is one reason why it is so important to use the period between the divorce application and the Conditional Order productively.
Once the application for a Conditional Order is lodged, the court will consider it administratively. A judge reviews the paperwork and, provided everything is in order, the Conditional Order is pronounced. Following the change in the law in April 2022, there are now only limited technical reasons to challenge a divorce application (a jurisdictional dispute, the marriage was never valid, the parties are already divorced or fraud/procedural non-compliance). It is not possible to challenge the divorce simply because you object to it.
Once you have made the application, you will receive a certificate of entitlement confirming the date and time of the Conditional Order pronouncement. You will not need to attend court for the Conditional Order to be made and you will receive the Order via the online portal.
It is also worth noting that the court does retain the power to set aside a Conditional Order in certain limited circumstances, for example, if new facts come to light suggesting the marriage was not valid in the first place.
This is one of the most common questions we are asked about the divorce process, and it is an important one.
The Conditional Order confirms that the court is satisfied the marriage has irretrievably broken down and that there is no legal bar to the divorce proceeding. However, the marriage remains legally in existence. The parties are still married.
The Final Order, the second and concluding step, is what legally ends the marriage. It can be applied for no earlier than six weeks and one day after the date of the Conditional Order. Once the Final Order is granted, the marriage is dissolved and both parties are free to remarry.
The gap between the Conditional Order and the Final Order is deliberate. It gives the parties, the opportunity to raise any final legal objections, and time to resolve financial matters. This brings us to perhaps the most important practical point about the Conditional Order stage.
This is an area where we strongly recommend taking specialist legal advice before acting. Whilst it may be tempting to apply for the Final Order as soon as the six-week period after the Conditional Order has elapsed, doing so without first resolving your financial arrangements can have serious consequences.
Until a financial remedy order, such as a Consent Order, has been approved by the court, your financial claims against each other remain open. Importantly, in the event that either party dies between the Conditional Order and the Final Order, the surviving spouse may still be entitled to inherit under the other’s estate or to make a claim or be entitled to spousal benefits under some pension schemes. Once the Final Order is made, those rights are extinguished.
It is important to understand that without a formal financial order in place, either party can in principle bring a financial claim against the other at any point in the future, even many years after the divorce has been finalised (unless they have remarried). If one party remarries then they cannot bring a financial claim but you should be aware that the other party would still be able to bring a claim. The period between the Conditional Order and the Final Order is therefore a critical window in which to address financial matters, including the division of property, pensions, savings and other assets in order to provide certainty moving forwards.
We always advise our clients to use the time between the Conditional Order and applying for the Final Order to resolve any outstanding financial issues. Applying for the Final Order before a financial settlement is in place is a step that can be very difficult to undo.
The period between the conditional order and final order can also be used to agree the arrangements for any children although these can, of course, be resolved at any time should a dispute occur. Sorting out children’s arrangements is a separate process from the divorce itself, though the two often run alongside each other, and should there be a dispute a formal court order can be obtained. More commonly, parents will be working through arrangements by agreement, whether through family mediation, the collaborative model, or lawyer negotiation – and capturing those arrangements in a Parenting Plan You can read more about the options available for resolving children arrangements on our children page.
If a sole applicant applies for the final order without the other party’s knowledge or before financial matters have been resolved, the other party can in limited and exceptional circumstances apply to the court to delay the making of the final order.
If you are concerned that your spouse may apply for the Final Order prematurely following the Conditional Order, please speak to a solicitor as soon as possible.
The Conditional Order is not exclusive to divorce. The same two-stage process applies to the dissolution of a civil partnership, with identical terminology, procedure and waiting periods. The same considerations around financial settlement apply equally.
The Conditional Order is a significant milestone in the divorce process, but it is not the end of the road, and navigating what comes next, particularly in relation to finances and any children arrangements, requires careful thought.
At Family Law Partners, our specialist divorce solicitors can advise you at every stage of the process, from the initial divorce application through to the Conditional Order, financial settlement, and beyond. There are many alternatives to court in order to resolve family law disputes, including family mediation, collaborative law, and lawyer negotiation.
If you would like to speak with a member of our team about the Conditional Order process or any aspect of your divorce, please get in touch. You can also download our free guide to divorce and separation for a clear, practical overview of the divorce process from start to finish.
Bethan Campbell is a Senior Associate Solicitor & Collaborative Lawyer in our Ascot Office and is a member of Resolution.