What is a Financial Order? - Family Law Partners

What is a Financial Order?

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What is a Financial Order?

Co-Author Yasmin Jeffrey.

There are two crucial documents required to finalise a divorce.

The first is the final order in the divorce, which concludes your marriage to one another.

The second is the financial order, which details the financial outcome. Most financial orders are made as a result of an agreement reached between the parties and therefore the order is made ‘by consent’.

It is crucial that you obtain a financial order on divorce because it is this document that severs the financial nexus between you and your partner, which is expanded upon below.

How do I get a Financial Order?

Divorcing couples reach financial outcomes using a variety of different methods, including mediation, solicitor negotiation, court proceedings or simply by coming to an agreement between themselves. However, it is not enough to come to an agreement and not have it drawn up in a financial order. Once an agreement has been made, parties must seek independent legal advice to ensure their agreement is within the wide discretionary bracket of possible outcomes a court might order and for a solicitor to draft the legally binding financial order.

Once the financial order has been agreed, it is submitted at court for a judge’s consideration and approval. The court do not have the jurisdiction (i.e. the ability) to consider and approve a financial order until the conditional order has been pronounced in the divorce process. So, whilst the divorce and financial process are separate, they do run alongside each other.

Judges do not simply approve financial orders without considering both parties assets and income sources. When considering a financial order, judges will have regard to the section 25 factors set out in the Matrimonial Causes Act 1973 and a statement of financial information (Form D81) completed by both parties. Judges must be satisfied that the agreement reached is a fair outcome in all the circumstances for both parties and that it meets their respective financial needs and those of any children of the family.

If a judge is not satisfied that the agreement reached is a fair outcome, they can refuse to make the financial order and as a result they may ask both parties to provide further information as to why they believe the agreement to be fair. In some cases, a judge will invite the parties to attend a short hearing to review matters.

A judge must approve the financial order for the agreement to be legally binding.

Significance of a financial order

  1. Legal Binding: Once approved by the court, the order becomes legally binding, providing a formal and enforceable agreement. This means that the parties financial ties are severed, and both parties are unable to make a claim against the other for finances in the future. In circumstances where there is not a clean break as to income, for example one party is paying ongoing spousal maintenance, then the party receiving maintenance will have their income claims against the other kept ‘open’ for a defined period and spousal maintenance can be reviewed in future upon a change of circumstances.
  2. Financial Protection: There is no time bar for making a financial claim against an ex-spouse. Therefore, as mentioned above, without a formally binding agreement a parties respective claims remain open. Therefore, the benefit of a financial order is that it safeguards the financial interests of both spouses in the years post-divorce.

The case of Wyatt v Vince [2015] UKSC 14 demonstrates the importance of obtaining a financial order. The husband and wife in this case did not obtain a financial consent order as they believed it was not necessary due to having minimal assets. Many years post-divorce, the former husband became a multi-millionaire after establishing a business in green energy. The former wife applied to the court seeking a financial settlement from her former husband 19 years after their divorce. The Supreme Court found Ms Wyatt’s application to be successful and she secured a lump sum of £300,000.

This case illustrates the significance of obtaining a financial order and severing the financial ties between you and your ex-spouse. If you do not finalise financial matters by way of a financial consent order at the same time as the divorce, you could potentially face litigation in the future and financial uncertainty. Therefore, even if you have agreed on a clean break on all issues, you must get this finalised into a financial order of the court.

What to do if you are thinking of getting divorced and require a financial consent order?

If you have decided that your marriage has irretrievably broken down and you are applying for divorce, it is advisable to seek legal advice on the divorce process and how to resolve your finances correctly. It will be necessary for at least one of you to instruct a solicitor to assist with the drafting and submission of a financial order at court.

Our specialist family lawyers in Horsham and Brighton can help you, please get in touch to arrange a consultation.

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