What is a Financial Order in a Divorce?

A financial order in a divorce is a legally binding court document which sets out how finances, property, pensions and ongoing financial support will be dealt with following the breakdown of a marriage. It can be imposed by a judge at the end of financial remedy proceedings, or it can be agreed by the separated couple and then approved by a judge. 

When the terms are agreed by the parties it is known as a “consent order” or a “financial remedy consent order”.

Where ongoing support is in issue, our guide to spousal maintenance payments explains how maintenance is assessed and structured.

Do you need a financial order?

Yes, otherwise any agreements with your spouse will not be legally binding and they are free to change their mind. A financial order is needed to enforce any promises made about financial settlement.

A divorce alone does not end spouses’ financial claims against each other. Without one, your ex-spouse could claim against your assets many years later, even if your financial circumstances have changed greatly since your separation. 

One is required for any pension shares to be transferred between ex-spouses.

If you’re currently separating, our divorce solicitors can advise on the divorce process alongside the financial arrangements.

Can you negotiate the terms?

Yes, many couples negotiate the terms of their order and then submit it to court for approval by a judge. There are lots of different ways to negotiate, including discussions between yourselves, mediation, collaborative law meetings, and through solicitors’ letters. It is always a good idea to take legal advice when negotiating so that you understand your entitlement.

However, many couples resolve terms without court hearings through family mediation, before asking the court to approve a consent order.

Will a financial dispute impact how long it takes to get an order?

Yes, if you can’t agree about the terms, you will either need to apply to court for financial remedy proceedings, or try to negotiate for longer to reach an agreement.

Within financial remedy proceedings you will still be encouraged to negotiate a settlement, but at the end of the process if there is no agreement the court will impose a financial order at the final hearing. It can take around 18 months for financial remedy proceedings to reach final hearing stage.

The court process and paperwork is explained in more detail in our guide to financial claims and orders.

Can you get a financial order after decree absolute?

Yes, you can get one after your “final order of divorce” (formerly known as decree absolute). If you remarry before making a financial claim against your spouse then some of your claims against them may be closed. 

Is a financial order and a clean break order the same?

No. A financial order may include various “order clauses” or “orders” within it. A “clean break” means that the parties’ claims against each other are dismissed. If an order contains a clean break order clause, then that part, or the whole document, might be referred to as a “clean break order”. But some do not contain a clean break order clause.

Can it be overturned?

Yes, they can sometimes be overturned, if it can be shown that the judge made an error of law, or that there was some fraud (for example one person lying about their assets), or if there is an extreme and unexpected change of circumstances within one year of the order being made. 

What does the court consider when making its final decision?

The court considers the factors set out at section 25 of the Matrimonial Causes Act 1973. Each case is different and will depend on its facts. A lawyer will be able to advise you on how the statutory factors apply to your specific circumstances.

If you’re unsure what’s likely to be included, see our article on how assets are split in a divorce in England & Wales.

Could I be liable for my ex-spouse’s future debts without an order?

Yes, one is needed to protect you from any claims by a trustee in bankruptcy. If you believe that your spouse or ex-spouse is at risk of bankruptcy you should take urgent legal advice to best protect yourself. 

How do they work in second marriages or blended families?

The same principles apply to an order following a second divorce as to a first divorce. If one party has remarried, is cohabiting with a new partner, or has had children with a new partner, then those circumstances may be taken into account by the court when considering the factors at section 25 of the Matrimonial Causes Act 1973.

How can our Family team support you?

We can prepare consent orders for clients who have agreed terms, or help to negotiate the terms through correspondence, collaborative law meetings, or “behind the scenes” advice alongside mediation. Where parties cannot agree, we provide excellent representation and strategic advice through the financial remedy court process to ensure clients receive the best possible outcome.

If you’re at the start of the process, our guide on how to start divorce proceedings explains the first steps you need to take and what to expect during the process.

Whether you are at the beginning of the divorce process or seeking strategic advice, our family law team, led by Legal 500 recognised Simon Magner Mawdsley can provide comprehensive support and reassurance. Contact the family law team today to discuss your matter.

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