Financial Settlements for Married Couples

We can help you negotiate a financial settlement alongside your divorce or separation. We will advise you on the alternative options to court and help and support you to reach a settlement. To ensure your agreement is binding, and claims are dismissed it will need to be formalised in a court order (called a consent order). Until the order has been made by the court financial claims will remain open. A divorce or dissolution application will need to have been issued and the proceedings to have reached the conditional order stage before you can apply for the court to approve a consent order.

If you want to formalise your separation and agree financial arrangements without involving the court, you can enter into a separation agreement (commonly referred to as deed of separation). You can agree in the separation agreement to convert the terms to a consent order in any later divorce or dissolution proceedings.

A separation agreement does not have the same finality as a court order. Only if there has been a divorce or dissolution application can the court approve a financial settlement and dismiss financial claims. A separation agreement cannot stop a spouse making an application to the court if they later change their mind about the terms of the settlement. However, if you both receive independent legal advice about the terms of the separation agreement and make full disclosure of your financial resources and any other relevant circumstances and provided the agreement is fair the court is likely to uphold it.

A financial remedy application is an application for a financial order made by a party to divorce, dissolution, judicial separation, or nullity proceedings. Whilst court proceedings are usually the last resort, we will advise you to issue if we need the court’s intervention to protect you. The court’s assistance may be necessary if there is domestic abuse, third parties involved or concerns over disclosure and hidden assets.

The court can make the following financial remedy orders:

• A lump sum order.
• A transfer of property order (an order transferring property other than pensions, such as houses, business assets, shares, and bank accounts).
• A periodical payments order (maintenance for a party following the outcome of the proceedings or for the children of the family).
• Maintenance pending suit order (maintenance for a party pending the outcome of the proceedings).
• A pension sharing or compensation order (an order sharing pension benefits).
• A variation order (an order to vary a previous order).
• Avoidance of disposition order (an order restraining a party from disposing of or dealing with their property).
• A legal services order (an order providing for the payment of legal fees).

We advise on company valuations and forensic accountant reports, shareholder agreements, share award schemes and the transfer or offsetting of business interests.

We advise on the status of matrimonial and non-matrimonial assets and cases involving complex trusts, third party interests, succession planning and lifetime gifts or inheritances.

We advise on pension sharing and pension attachment orders and the use of other capital to ‘offset’ a pension claim. We work with pension experts, actuaries, and financial advisors to offer bespoke and tax efficient solutions.

We work with asset tracing companies and have expertise in applying for disclosure orders and applications to prevent assets being transferred out of the jurisdiction or transferred to a third party.

We advise on partnership agreements and third-party interests. We work with land agents and financial advisers to give bespoke solutions on succession and tax planning.

If you or your family have a close connection to more than one country, you may have a choice where to issue a divorce or dissolve your civil partnership. The law varies from country to country and so it is important to get early legal advice so you can consider the best country (forum) for you to start proceedings. In helping you decide where to start proceedings we will consider the advantages and disadvantages of pursuing financial claims in another country, the time it will take to finalise the divorce or dissolution and any related financial claims and whether the financial orders will be recognised and enforceable.

If you have children, we will also consider the likely impact of a foreign divorce or dissolution on the orders that may be made in relation to your children.

It is important that you act quickly and seek advice on jurisdiction before notifying the other party because the country where divorce or dissolution proceedings are first issued may ‘seize’ jurisdiction to also deal with financial matters.

Read more about our International Family Law Services

If a divorce has been obtained overseas you may be able to apply for financial matters to be determined in England and Wales under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984).

Even if a financial award has already been made in another country you may still be able to apply, however, the level of the amount already awarded will impact on whether the court in England grant permission for you to make an application.

Either party to a marriage can apply for financial relief where the marriage has been dissolved or annulled, or the parties to the marriage have been legally separated in an overseas country and the divorce, annulment or legal separation is recognised as valid in England and Wales.

For a foreign marriage to be recognised as valid, the marriage must have taken place in compliance with the law of the jurisdiction in which it was celebrated.

For the court to have jurisdiction to determine an application the application must meet one of the following requirements:

• Domicile. Either party is, on the date of the permission application, or was, on the date that the foreign divorce, annulment, or legal separation took effect in the overseas country, domiciled in England and Wales.
• Habitual Residence. Either party was habitually resident in England and Wales throughout the period of one year ending with the date of the permission application or the date when the foreign divorce, annulment or legal separation took effect in the overseas country.
• Matrimonial home in England and Wales. Either party has at the date of the permission application a beneficial interest in a dwelling-house in England and Wales that was at some time during the marriage a matrimonial home of the parties.

If you already have a financial order in place, you may need to vary or set aside the order due to change in circumstances.

What orders can be varied?

Orders that can be varied or discharged are defined in section 31 of the Matrimonial Causes Act 1973 (MCA 1973) and include:

• Maintenance pending suit: orders providing for an amount of maintenance to be paid, usually monthly until the final divorce order.
• Periodical payments and secured periodical payments: Orders for the payment of maintenance, usually monthly for a specified term or on a joint lives’ basis.
• Lump sums by instalments. Any order for the payment of a lump sum by instalments.
• Provision for children: An order for periodical payments (child maintenance) or the payment of a lump sum by instalments.
• Deferred lump sums: Any deferred lump sum order that includes provision for pension rights and pension compensation rights.
• Settlement orders: An order providing for the settlement of a property for the benefit of a spouse or children of the family or varying a settlement for the benefit of a spouse or children of the family. The order to be varied must be made after an order for judicial separation and the application to vary must be made in subsequent proceedings for rescission of that order or for dissolution of the marriage.
• Sale of property: An order for the sale of property in an order for:
  • secured periodical payments;
  • payment of a lump sum; or
  • property adjustment.

• Pension sharing orders:  The application to vary must be made before the order takes effect.  A pension sharing order will take effect from the date of the final divorce order, or, if later, 7 days following the period of appeal (time for appeal usually being 21 days).
• An executory order: An order that has not been implemented (whether wholly or partly) can be varied.  The court’s decision whether to set aside or vary an executory order will depend on whether it would be inequitable to hold a party to the original terms of the order where there has been a significant change in circumstances.

What orders cannot be varied?

• An order for a lump sum not payable by instalments;
• Property adjustment orders (except settlement orders as outlined above);
• A pension sharing order after the order has taken effect. A pension sharing order will take effect from the date of the final divorce order, or, if later, 7 days following the period of appeal (time for appeal usually being 21 days).

If the paying party is defaulting on their payments under a court order the receiving party can apply to enforce the order.