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Since the introduction of the no-fault divorce process in September 2021, solicitors have reported that clients tend to deal with the divorce proceedings themselves and without advice. By not getting advice at the appropriate stage, people do not always realise that they need to sort out their finances before applying for the final order.

Applying for Divorce online

To start a divorce application, you now need to use the platform MyHMCTS. To begin the divorce process, the petitioner has to log onto the portal, open an account, and complete the online forms as presented. Since the Divorce, Dissolution and Separation Act 2022, the party seeking a divorce does not need to establish fault by their spouse to make an application. This was intended to make the application less adversarial and, it was hoped, that this would result in the parties having a better relationship to agree on arrangements regarding children and the division of matrimonial assets.

Division of the matrimonial assets

It is essential, however, that parties agree to the division of the matrimonial assets before applying for the final order in any divorce proceedings. Failure to do this may result in the parties losing out on any potential entitlement. This includes dividing pensions, property, savings and investments.

If the parties agree to the division of money and property, this will prevent them from going to court. They will need to apply for a consent order to make the agreement legally binding. The parties will need to draft and sign a consent order and fill in a statement of information form (Form D81) and notice of an application for a financial order (Form A).

If the parties cannot agree, they can ask the court to make a financial order. Usually, the property will be divided fairly when it is shared equally between the parties. The court will also take into account:

• First and foremost, the welfare of the children: for example, if one spouse will be left with the economic burden of caring for children under 16.
• Available capital and resources: the court will look at the current income position and their future earnings and their future needs and obligations.
• The length of marriage: different considerations will be taken into account. For long marriages, the court will usually consider a 50/50 split. For shorter marriages, capital contributions become more relevant. A ‘Clean break’ order may be issued.
• The standard of living the parties were used to before the separation
• Any physical or mental incapacity of the parties
• Parties’ contribution: for example, any advantage or disadvantage gained/suffered by the spouses during the marriage. This could include the fact that one party gave up their career to look after the children,
• Whether one spouse needs additional financial support after separating
• Whether one spouse will suffer a serious loss of benefit because of the divorce.
• Lastly, but in very exceptional circumstances, bad behaviour/conduct: the Court will only regard it if it is so serious as to be unfair to disregard it.

It is still possible to seek an unequal share of property or assets. The court will consider any special circumstances to justify deviating from an equal division. This includes:

• Any agreement between the parties dealing with ownership or division of assets (e.g. Pre-Nuptial agreement).
• The source of funds used to acquire any matrimonial assets, if the money did not come from parties’ income during the marriage.
• The nature of matrimonial assets, their use, and the degree to which it is reasonable to expect them to be realised, divided or used as security.

It remains at the court’s discretion to decide if it is reasonable to depart from the equal division principle.

If you need advice on divorce or financial relief, you can seek free advice at ÑÇÖÞÉ«°É Legal Advice Clinic (BULAC). If you would like to book an appointment with us, call 01248 388411, or you can also email us at bulac@bangor.ac.uk

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