Divorce and Financial Settlement FAQs

At the point that two people decide to enter into marriage, they never expect that their marriage or civil partnership will end.

If you are faced with this issue, our experienced, compassionate, and tenacious family law solicitors will guide you through the processes involved and ensure that your best interests, and those of your children, are protected.

We have created this brief article to answer some common questions which might be of assistance in advance of any consultation with any of our solicitors.

Do I have to prove adultery or unreasonable behaviour to get a divorce in England and Wales?

Since April 2022, the Divorce, Dissolution and Separation Act 2020, changed divorce laws to the extent that neither party has to now ‘blame’ the other for the divorce. Instead, one or both parties simply need to make a statement that the relationship has ‘irretrievably broken down’.

There is no scope for either party to defend or contest the divorce in order to prevent it. The Court must accept the single or joint statement that the marriage has irretrievably broken down and then make the divorce orders, subject to court requirements in relation to the timing of the orders.

How is a financial settlement negotiated?

An experienced family law solicitor will take the time to understand what you and the family need in terms of a financial settlement, both in terms of capital funds but also in relation to the day to day income and outgoings.

To do this, you and your spouse or ex-partner will need to disclose what you each have and what you need. This process can take some time and is often the stage in the process that incurs the most cost, especially if either party is not clear about what they have, or if they are deliberately obstructive.

After establishing what the financial ‘pot’ looks like, together with assessing your respective priorities and positions, your solicitor will communicate with your ex-partner or spouse’s solicitor and commence negotiations.

In the event that it is not possible to immediately resolve matters by agreement, alternative dispute resolution methods such as round-table negotiations, mediation or an early neutral evaluation of the case are often productive and successful. That being said, it is true that sometimes going to court proves inevitable, especially in the context of non-disclosure. Court proceedings are hopefully a last resort in any case, and arbitration also remains an option in most cases; it is not reserved simply for high net worth and/or complex cases.

What factors does the Court consider when deciding on a financial settlement?

The court must refer to the provisions set out under section 25 of the Matrimonial Causes Act 1973 when deciding whether to move away from the starting point of equal sharing of matrimonial property.

The section 25 factors are:

  • the income, earning capacity, property, and other financial resources each party has access to, both now and in the near future;
  • the financial needs, obligations, and responsibilities of each of the parties now and in the near future;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the age of each party to the marriage and the duration of the marriage;
  • any physical or mental disability of either of the parties to the marriage;
  • the contributions that each of the parties has made, or is likely to make in the near future, concerning caring for any children of the marriage;
  • the conduct of each of the parties, and particularly if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it; and
  • the value of any benefit one party would fail to acquire as a result of the divorce.

What is a Consent Order?

If you and your spouse have been able to negotiate an agreement using alternative dispute resolution methods, round table negotiations or mediation, for example, or indeed have reached an agreement between yourselves, the parties can apply to the Court to have the agreement approved in the form of a ‘Consent Order’ with the assistance of their solicitors, or with at least one of their representatives.

Although the Court has the ultimate discretion to decide whether or not to ratify a financial agreement, Baroness Hale stated in Sharland v Sharland [2015] UKSC 60 that if experienced legal representatives draft the order, it is likely to be approved and the Court will be “heavily influenced by what the parties themselves have agreed”.

Once approved, the Consent Order is binding on the parties, with only very specific elements of it being variable on strict application to the Court, about which a party would be encouraged to take very specific advice.

How does the family court decide who gets to live in the family home?

When deciding how property and assets are to be divided in a divorce financial settlement, the Court must consider all the factors under section 25 of the Matrimonial Causes Act 1973. As mentioned above, this includes (but is not limited to) the financial needs of the parties, the standard of living enjoyed during the marriage, and the current and future earning potential of each spouse. The welfare of any children involved will be the Court’s paramount consideration.

Most financial settlements on divorce are agreed outside of Court. We can advise you on a range of options concerning the family home and any other property that you and your spouse own together. For example, you may both agree to allow the party with whom the children live most of the time to reside in the family home until the children turn 18, after which the property will be sold, and the proceeds of the sale apportioned between you both. Another potential solution is to offset the family home against the value of any pensions.

We will guide you through the options and advise you in relation to an outcome which best protects your interests, and those of your children.

Edwards Family Law is a niche, London-based firm specialising in high net worth divorce and international family law. To find out more about divorce and financial settlements, please call +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk to arrange a consultation with one of our specialist solicitors. All enquiries are treated in the strictest confidence.