Getting Divorced: there’s more to it than just filling in the divorce petition

This article was originally published on 14 April 2021 and updated on 31 January 2022.

The law on applying for a divorce has changed and the procedure in this article will only apply to cases where the application was started before 6 April 2022.

The first step in getting divorced involves submitting a divorce petition to the court which can appear to be a very simple document, especially in its new online format or tick box paper application form. Many people may query the need for a solicitor to prepare the divorce petition when everything seems simple and agreed between the spouses. However, do you and your client understand the significance of sections 10.1 and 11.3 of the divorce petition which ask whether they want to apply for a financial order?

Spouses have the right to make financial claims against each other as a result of the divorce. This covers property adjustment orders, lump sum orders, spousal maintenance orders and pension sharing orders. Spouses may have come to an agreement about the finances and think they do not need to do anything further other than to issue the divorce petition and get their decree absolute. Alternatively, they might think that this is not relevant because there are no real assets of the marriage. However, a spouse’s right to make a financial claim is usually only brought to an end by a court order. If no court order is made the claims which each of them have against each other will remain open. This means that an application for a financial order could be made at a future date, possibly many years after the decree absolute. Also, without a clean break order, in the event of one spouses’ death the surviving spouse could make a claim against the deceased’s estate. These potential situations are something that the client may want to avoid.

If both spouses agree that they do not intend to make a financial claim, it is a good idea to obtain a court order dismissing their rights to make future claims against each other. This is often referred to as a ‘clean break order’. Alternatively, if they have reached an agreement, it is a good idea to obtain a court order setting out the terms of their agreement as a final settlement. This would be a legally binding settlement which would avoid any surprise future financial claims by either spouse.

Your client may fall into the ‘remarriage trap’ if they remarry before applying for a financial order or indicating their intention to make a claim on the divorce petition. This would result in the person who has remarried no longer being able to make a financial divorce claim against the other spouse. However, the other spouse may still be able to make a claim against the client (unless of course they have fallen into the remarriage trap themselves). It is therefore advisable to tick the boxes on the divorce petition indicating that a financial claim may be made; this does not necessarily mean that a claim will be made but provides a layer of protection. It is also very important to resolve all financial claims arising from the divorce by way of a court order before remarrying.

Applying for a financial order, including a clean break order, is a complex legal process and the client should seek expert legal advice to ensure that they obtain a fair and legally binding financial settlement.

Varinder Bhandal is a Family Law Expert in the Expert Advice Team at Citizens Advice.

The information in this article is correct as of the date of publication. Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.