The average person, considering the entire adult population (including those who never marry), is likely to only get divorced once in a lifetime.
Divorce can be a complex process due to the combination of emotional, financial, and practical challenges that can affect every aspect of life. Mistakes made during the process can have lasting financial, legal, and personal consequences, that often can be easily avoided.
This guide will help you recognise common divorce mistakes, and provide you with tips to avoid them to achieve a smoother, fairer, and less stressful divorce.
Divorce mistakes
The decision to divorce cannot be reversed.
Although the decision to divorce is a significant step, there is time to change your mind and consider alternatives, such as a trial reconciliation or to seek professional help. The specific purpose of the 20-week waiting period is to allow the parties – time to reflect. If you decide the marriage has not irretrievably broken down – you can withdraw the application for divorce at any time before a Final Order is made.
Not changing your Will during divorce.
It is a good idea to change your Will as soon as you decide to separate or begin proceedings to end your relationship for the following reasons:
- During a separation, divorce or dissolution of civil partnership, your existing Will remains valid. This means if you die before the Final Order, your spouse or civil partner will still inherit under your current Will.
By changing your Will, you can ensure that your assets are distributed according to your current wishes, especially if you want to provide for family members, children from a previous relationship, or you are in a new relationship. You can change your Will at any time during the divorce or dissolution process, however it is preferable to change it at the start of the process.
We cannot divorce if we are still living in the same house.
This situation is not uncommon and many couples choose to continue living in the same house for various reasons. These could include financial concerns, the wish to maintain a stable environment for any children, or simply to avoid the upheaval of moving out.
Since the introduction of no-fault divorce, couples no longer need to demonstrate that they are living separate lives or blame one party for the breakdown of the marriage. It is therefore possible to divorce even though you are still living in the same house.
Divorce is automatic after long separation.
There is no such thing as an automatic divorce after a long separation in England and Wales. No matter how long a couple has been separated, they must go through a formal legal process by starting court proceedings for divorce or dissolution to legally end their relationship.
To commence proceedings a person only needs to confirm that the marriage or civil partnership has irretrievably broken down.
Financial mistakes
Bad behaviour will influence the financial settlement.
Bad behaviour is rarely taken into account when determining financial settlements in divorce. The bar for considering marital misconduct is very high and it must be “gross and obvious” and be inequitable to disregard.
Examples include attempted murder, grievous bodily harm, incest, or hiring a contract killer. Financial misconduct like gambling away life savings, fraud, or reckless spending can be taken into account, but still rarely. The conduct must be extreme and proven to have a significant impact on the financial situation.
Not obtaining full financial disclosure
Financial disclosure is necessary so both parties can make informed decisions and reach a fair financial agreement. In England & Wales it is a legal requirement. Not providing a full and accurate disclosure of all assets and debts is a major mistake.
Courts require complete financial disclosure before approving any agreed settlement to ensure that both parties are making decisions based on all the facts. Failure to provide honest financial disclosure can lead to future disputes or legal challenges.
Getting divorced ends all financial ties
A Final Order in divorce ONLY brings a marriage to an end. It does not deal with financial matters. Financial matters must be dealt with separately.
A financial settlement in divorce will only become final and legally binding when a court formally approves it as a Financial Order. Once a court has approved a divorce financial settlement, they will send out a sealed copy of the Financial Order which acts as official confirmation that all financial matters are settled and legally binding.
Without a sealed financial order, financial claims between a couple remain alive, even after the divorce process is finalised.
Financial claims expire after divorce.
There are no time limits in divorce cases. In a 2023 case, a wife was allowed to make a financial claim against her husband 29 years after their divorce. Unless you have an Order dealing with financial matters approved by the Court – financial claims are still alive.
Focusing only on immediate needs.
Some couples overlook long-term financial needs, such as retirement, healthcare, or future living expenses, and focus only on short-term arrangements.
Capital needs are distinct from income needs, which relate to ongoing expenses and living costs. Capital needs refer to the one-time financial requirements that each party needs to establish themselves independently after a marriage or civil partnership has ended. A primary capital need is housing, which includes the ability to secure suitable accommodation. Other capital needs may include furnishings and white goods for a new home, a car or other transportation expenses, paying off debts, and the cost of further education or retraining.
Capital needs can also include a lump sum to establish savings or create an emergency fund.
Failing to formalise financial agreements.
Don’t make the mistake of completing a divorce without also obtaining a legally binding financial order. Without one, your ex could make future claims on your assets, even many years later. Not obtaining a legally binding Consent Order means financial claims can remain open indefinitely, exposing both parties to future claims.
The only exception to this is in the case of remarriage. If a party remarries without first reaching a Court approved divorce financial settlement, they will not be allowed to make financial claims against their ex.
It is therefore a good idea to resolve financial matters any time after a divorce, but before a remarriage.
Hiding assets during divorce.
Hiding assets during divorce is never a good idea. A court requires full transparency during a divorce. Hiding assets can result in settlements being set aside, or even legal consequences like fines or imprisonment.
We have no assets. We don’t need a financial order.
Even if neither of you has any assets, you should always finalise financial matters by agreeing a clean break Consent Order. A clean break order is the simplest type of financial Order that will cut any financial ties between you and your ex, now and in the future. By entering into a clean break Consent Order, you and your ex will have a lifetime protection and peace of mind at a small cost.
Ignoring pensions.
Pensions are often overlooked, despite being one of the most valuable assets in a marriage or civil partnership. In a divorce the law uses a 50/50 starting point for the settlement of all assets including pensions. If one spouse has a much larger pension than the other, this could be shared out between them via a court order called a ‘pension sharing order’.
When a pension sharing order is made a pension pot is split between a couple. One spouse will receive a percentage of a pension from the other spouse’s pension. This creates a separate and independent pension for the recipient. Once the pension share is implemented, each party has control over their own portion of the pension.
A pension sharing order can be made in both divorce and in dissolution of a civil partnership.
Alternatively, one party could take a larger share of a different asset instead of claiming from the pension, known as pensions offsetting.
Aren’t all financial cases in divorce split 50/50?
The starting point for all cases is a 50/50 split, however each case is different. The main objective is to meet the couple’s financial needs. If an equal split of the marital assets meets the couple’s needs, then the split will be 50/50. If not, then the division may be unequal. The end point may be more or less than a 50/50 split depending on needs.
Men always come out worse in divorce.
There is a misconception that men are always disadvantaged in divorce settlements. The law in England and Wales is gender-neutral and aims to be fair and balanced, focusing on the needs of both parties.
Financial settlements in divorce cases are determined by legal principles and factors such as the financial needs of both parties, the length of the marriage, the contributions made by both parties, and individual circumstances. The goal is to achieve a fair and equitable distribution rather than favouring one spouse over the other.
If you move out of the family home, you lose your rights to it.
If the house is jointly owned by a married couple, both spouses have equal rights to occupy the home.
If only one spouse owns the home, the other spouse will have matrimonial home rights to reside there, even if they are not the legal owner. If there are incidents of domestic abuse, it may be possible to restrict a spouse’s right to occupy the home through a court injunction.
Moving out does not affect your financial rights in divorce.
Estimating living expenses.
Once divorce or dissolution begin it is important to start tracking your actual current outgoings and build a budget post-divorce. Do not estimate or “ballpark”. Look beyond the normal monthly expenses and include things like your holidays, and seemingly ‘one-time’ expenses like replacing the dishwasher.
Not obtaining property valuations
Understanding the true value of a major asset is crucial for the fair division of assets, and a transparent settlement process. Having an accurate valuation helps you decide whether buying out your ex-spouse’s share or selling the property is the best option.
The three main ways to obtain a house valuation are as follows.
- The most accurate and reliable method is to instruct a Chartered Surveyor to carry out an independent, formal valuation. This is the recommended option when the parties cannot agree on a value, as a formal valuation will usually be accepted by the courts as the true value of the property.
- A less formal method is to obtain several estimates from multiple estate agents who can provide an average and general idea of a property’s value.
- A less reliable option is to carry out online research using property websites and online valuation tools who can provide rough estimates of value.
Rushing the Process
Set clear goals and objectives, and do not make hasty decisions. By having clear and realistic goals and objectives, negotiations will be easier. Identify what matters most to you in your divorce as soon as possible. Then keep your eye on the goal. Focus on what matters, and let go of what does not.
Letting emotions drive decisions.
Look at the bigger picture. It’s easy in a divorce to get hung up on the insignificant matters. Concessions on minor issues mean that you can spend more time sorting out the important stuff. Emotional attachment to specific assets (like the family home) or making decisions to “punish” the other party can cloud judgment and lead to financially unsound outcomes.
Legal mistakes
Not seeking legal advice.
Even if you and your spouse are in full agreement, it is a good idea to seek legal advice at least once during the divorce process. This is to make sure that your finances are split fairly. An impartial third party can make sure the deal is fair to the both of you. This is important as once a financial agreement is approved by the Court; it can only be changed in exceptional circumstances.
Failing to seek proper legal advice can result in unfair or incomplete agreements and missed entitlements.
You cannot use the same lawyer for a divorce.
Using the same lawyer is possible for couples who are largely in agreement on major issues and want to end their relationship amicably. The lawyer aims to provide impartial, balanced, and neutral guidance on issues like the division of assets and property, and arrangements for children. The parties are jointly given legal advice, information, and options to help them negotiate a settlement which the lawyer then incorporates into a legally binding agreement.
Receiving joint legal advice is cost-effective, and a less disruptive way for couples wishing to end their relationship.
A Solicitors letter is legally binding.
Receiving a Solicitors letter is usually a threat of a legal claim, stating a position, making a demand, or a request to do something, but it does not have any legal force in the same way that a Court Order has. A solicitor’s letter is simply a formal communication tool; however, it should not be ignored as it often indicates an intention to take legal action against the receiver. Although it is not legally binding, it is important to take a Solicitors letter seriously and respond appropriately within a reasonable period of time once you have taken legal advice. Failure to respond can serve as evidence in future legal proceedings, and may have negative cost implications for the receiver.
Divorce always means a Court battle.
Divorce does not have to be adversarial and a battle. Always consider methods of Non-Court Dispute Resolution which can result in cheaper, faster, and less adversarial divorce. Failing to engage without good reason, can result in cost orders being made against the offending party.
Can I draft a Financial Consent Order?
A Financial Consent Order is a legally technical document that requires precise language and must comply with legal requirements. Vague or unclear language, mistakes and omissions can result in the court rejecting the order. It is important to note that once a Consent Order is approved by the court it becomes legally binding and can rarely be changed even if errors are discovered later.
Whilst there is no legal requirement for a legal professional to prepare a Financial Consent Order, doing so as a litigant in person carries risks. By instructing a legal professional you will save time and money as they will ensure the Order contains the correct clauses, complies with the law, and accurately reflects the terms and intentions of the financial agreement reached.
Practical mistakes
Not communicating.
If you want a quicker, cheaper, and less stressful divorce, then effective communication is key. Tips for effective communication include:
- Being prepared to be honest and transparent when dealing with financial issues and financial disclosure.
- Focusing on moving forward, and avoiding past blame and engaging in confrontational behaviour.
- Being ready to compromise and finding mutually beneficial solutions rather than wanting to “win”.
- Agreeing to keep any children out of any disputes and putting their best interests first.
Reasonable, and open communication between parties is key to saving a costly and protracted divorce.
Not educating yourselves about divorce.
No one will care more about your future, your financial needs, or your life post-divorce – than you! If you don’t know how divorce works, now is the time to find out. If you don’t understand the “ins and outs” of your financial situation – get a financial adviser to advise you.
Using social media during divorce
The use of social media during a divorce can significantly impact legal proceedings. It is important to remember that social media posts, messages, photos, and interactions can serve as evidence in a divorce. They can be used to demonstrate purchases, holidays, new relationships, or changes in a person’s employment or financial situation. The best practice during a divorce is to stop or significantly reduce social media activities until after the divorce is settled.
You should always assume that everything that is posted by you, can and will be seen by your ex-spouse and their lawyer. If use of social media is absolutely necessary, carefully consider how posts or photos could be interpreted or use as evidence before posting.
Be careful who you listen to.
Getting divorce advice from your friends, family, or your neighbour who got divorce two years ago, is not a good idea. None of these people (although well-meaning) are likely to be objective divorce experts. Instead, rely on your friends and family for emotional support, and take advice from experts with experience.
Dating during divorce
Since the introduction of no-fault divorce, adultery is no longer relevant when a marriage has already irretrievably broken down. Unless there is a possibility of reconciliation, there is no reason why you should not begin dating during divorce. You should however be aware of some practical considerations.
If you decide to cohabit with a new partner or plan to do so in the near future – you have a duty to disclose this information in any financial proceedings relating to the divorce.
If you have a child or children from your marriage, it is crucial to consider when you will introduce a new partner to your children, and how it might impact their adjustment to the divorce.