29 January 2024

When to seek legal advice in a divorce: don’t wait for a Conditional Order

Lucy Reding Senior Associate
Wedding rings on top of contract

Since April 2022, there is now an obligatory 20-week “cooling-off” period between the date of a divorce application being issued by the court, to the first date the ‘Conditional Order’ (previously known as Decree Nisi) can be applied for.

It is important this time is used wisely.

Do I need a Court Order to make a financial agreement with my spouse?

The Conditional Order gives the court the power to approve a financial agreement reached between you and your spouse. In some cases, couples may reach an agreement themselves after their separation, with no legal paperwork involved. This is dangerous and can carry significant risks for both parties.

Regardless of what you have personally agreed, your spouse will still have a financial claim as a result of your marriage until the court has said otherwise. Therefore, if no legal paperwork is drawn up and approved by the court, your spouse could potentially make financial claims against you in the future.

You should ensure that any financial agreement reached between you and your spouse is incorporated into a legally binding Court Order, to provide you and your spouse with protection moving forward.

The 20-week cooling-off period can therefore be used to obtain information, prepare necessary paperwork, and ensure it is signed in readiness to be submitted to the court when the Conditional Order has been made.

What’s the rush?

After the Conditional Order is made, it is possible to apply for the Final Order of Divorce (previously known as Decree Absolute). There are just six weeks and one day between the Conditional Order being made and the ability to apply for the Final Order.

There are potential ramifications if the Final Order of Divorce is made prior to the making of the legally binding financial Court Order referred to above.

The online divorce portal currently only prompts you to address financial matters when the Conditional Order has been made, potentially leaving you with just six weeks and one day to deal with finances. If you have made no attempts to formally resolve financial matters prior to that point, you have potentially wasted the 20-week cooling-off period. This time could have been used to take steps to reach a financial agreement, prepare required court paperwork, or protect your position - preventing your spouse from applying for the Final Order before you are ready.  

In some cases, the spouses may agree to delay the application for the Final Order because remaining married provides reciprocal protection, but this is not relevant for every married couple. Instead, one party may seek for the Final Order to be made as soon as possible.

Am I at risk if finances aren’t agreed before the Final Order is made?

Yes, once the Final Order is pronounced, your marriage has legally come to an end – but so will the financial benefits and protections you have as a spouse. You will no longer be automatically entitled to the financial benefits of your spouse’s pension or any life insurance policies if they die. Further, you may not have the right to remain in your family home if it is legally owned in your spouse’s sole name. Your partner could force you to leave the property.

In these circumstances, there are applications you can make to protect the position of you and any children, but these applications must be made prior to the Final Order being made. Therefore, obtaining advice early and prior to the Conditional Order being pronounced is vital.

Will a joint divorce application protect me?

Many people who proceed with joint divorce applications with the court are unaware that it is possible for one party in the application to convert the divorce to a sole application. Therefore, the issuing of a joint divorce application does not necessarily protect you from your spouse proceeding to apply for the Final Order before you are ready.

There have been a number of recent cases whereby the court has made the Final Order despite financial matters not being formally resolved, and even where one party may face a financial disadvantage if the Final Order is made. Therefore, in most cases, it is vital to ensure that financial matters are resolved by making a legally binding Court Order prior to the Final Order being made by the court.

How soon should I seek legal advice in my divorce?

All cases are different. The best way to protect yourself, your home, and your financial situation is ultimately to seek advice early, and if possible, prior to the divorce application being submitted to the court.

This ensures you are aware of your legal rights, enables you to make the best use of the 20-week cooling-off period, and ensures you do not need to make urgent applications to the court.  

Here at Wilkin Chapman, we understand that it can be difficult to take that first step. That said, we also understand that it is even more essential that you take the first step with the right advice for your circumstances and situation. We take pride in guiding our clients through a complex system during a challenging time in their lives with simple, pragmatic, and understanding advice.

Getting advice early from a family law expert is essential, and we are here to help.

Lucy Reding, Wilkin Chapman LLP
Need help?

Contact Lucy to discuss this further.

Back to top