What comes first divorce or financial settlement?

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As with so many areas in family law, the answer is “ it depends”.  It often comes as a surprise to many clients we speak to that finances are not automatically addressed as part of the divorce process.

Indeed, we often meet with clients who believe that choosing not to make a financial claim within the divorce petition means that they do not need a financial order to resolve their financial claims against each other.  However, this is not the case.

A financial order needs to be made to address the financial claims that each person may have against the other and a financial order dealing with all of those claims can only be made as part of a divorce or dissolution of a civil partnership  – it does not happen automatically.

Is there a typical timeline?

Everyone’s circumstances are different, however, In most cases where a family lawyer is involved at an early stage, the timeline as to how divorce and financial settlement works is something like this:

  1. The divorce process is started at an early stage to ensure that Decree Nisi is pronounced as soon as possible so that a financial order can be approved by the court.
  2. Steps will be taken to resolve the financial issues. Dispute resolution methods can be used to resolve any issues, such as Mediation or the Collaborative process. Other ways to resolve matters can be via solicitor-led negotiation or through the court.
  3. Decree Nisi is pronounced within the divorce. If a financial agreement has been reached then a financial order will be submitted to the court for approval and sealing.  However, if no financial agreement has been reached then often no further progress will be taken in respect of the divorce until such time as a financial agreement is reached.One of the reasons for this is the potential loss of widow’s benefits that may be lost under a pension that a spouse holds, in the event that person dies before a financial order has been made.
  4. Once a financial order has been made the Petitioner in the divorce applies for Decree Absolute.

Depending upon the terms of the financial order and whether it includes a pension sharing order, there may be a delay of 28 days between the financial order being made and applying for Decree Absolute.

What happens if I already have Decree Absolute?

We often meet with clients who have dealt with the divorce themselves and where they have already received their Decree Absolute without having addressed their financial claims.

In most circumstances, this does not prevent them and their former spouse from seeking to resolve their financial claims and the same options are available to them to resolve them as would be available if they had not finalised the divorce.

What happens if my spouse and I have reached an agreement but have not started the divorce?

We also sometimes meet with clients who have already reached an agreement with their spouse/civil partner as to how they wish to resolve their financial claims but have not started the divorce or dissolution process.

In those circumstances, we will often use the time whilst the divorce is progressing to Decree Nisi to finalise the paperwork, recording the agreement that has been reached so that this can be submitted as soon as Decree Nisi is pronounced.

Chris Maulkin is a Family Law Specialist based in our Brighton office. To discuss your situation confidentially, please contact us.

 

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