Law Articles

Should you finalise your divorce before having a financial settlement? 22/04/2024

Applying for the final divorce order (previously called decree absolute) before having a financial settlement can have some significant drawbacks. The main reason solicitors advise clients to wait to apply for the final divorce order until the financial matters have been settled is that the final divorce order legally ends the marriage. This can have important consequences, such as:                                                                          

1. If one spouse dies before the financial settlement is finalised, the surviving spouse may lose certain rights and benefits they would have had as a widow/widower. 
2. Transferring certain assets, like pensions or trust funds, may require the couple to still be legally married, so the final divorce order should be delayed until these transfers are complete.
3. There can be tax implications, such as capital gains tax or stamp duty, when transferring assets between spouses that may be avoided if the final divorce order is delayed.
4. In rare cases where the divorce is disputed, obtaining the final divorce order before the financial matters are settled could complicate the process.                                                                                                                                                                                                                                  

If you have accidently applied for the final divorce order before having a financial settlement, you should immediately contact your solicitor. Your solicitor may request that the court delay issuing the final order until the financial settlement has been reached and a consent order made. However, if the final divorce order has already been made following the accidental application, it may still be possible to have it set aside by the court, but this would require demonstrating that there was a procedural or other irregularity.

In the recent case of Williams v Williams [2024] EWHC 733 (Fam), the High Court refused to set aside a final divorce order after solicitors for the wife mistakenly applied for it on behalf of the wrong couple. In this case, the parties had separated after 22 years in January 2023 and the wife issued divorce proceedings. She was allowed to apply for a final divorce order from September 2023. Her solicitors used the court portal on 3 October 2023 to apply for the final divorce order in error. The final divorce order was made just 20 minutes after the application was made on the court portal. The wife’s solicitors did not discover the mistake until two days later, at which point they applied for the final divorce order to be set aside, which was granted by a Deputy District Judge. When the husband was informed by the wife’s solicitors that the parties were still married, he sought a High Court hearing. The wife’s position was that the application was made in error and therefore the electronic application should not have been granted. The husband’s legal team said there was no authority in which a decree absolute (now called final divorce order) had been set aside where there had been complete procedural regularity. The High Court agreed with the husband’s position.

In such a situation, the key is to act quickly with your solicitor to mitigate any negative consequences of obtaining the final divorce order prematurely.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.