In order to make an application for divorce, on the date of the application, the applicant must meet at least one of the following jurisdictional criteria set out at Section 5(2) Divorce and Matrimonial Proceedings Act 1973:

• both parties are habitually resident in England and Wales;
• both parties were last habitually resident in England and Wales and one of them continues to reside there;
• the respondent is habitually resident in England and Wales;
• in a joint application only, either of the parties to the marriage is habitually resident in England and Wales;
• the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
• the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
• both parties are domiciled in England and Wales; or
• either of the parties are domiciled in England or Wales.

A party’s habitual residence is the place in which their life is mainly based. The court considers habitual residence by analysing the factual circumstances. There is no fixed time period of living in England and Wales for establishing habitual residence.

There is no statutory definition of domicile and it can be a complex area if there is a dispute. In summary:

• Each person is born with a ‘domicile of origin’ acquired from their father (if parents were married) or mother (if not married or if their father died before their birth).
• Domicile of origin can be replaced by a ‘domicile of choice’ if the person:
• Has their only or main residence in a new country, and
• An intention to reside in that new country permanent and indefinitely.
• Both elements must be present at the same time to acquire domicile of choice. (Bell v Kennedy [1868] LR 1 Sc & Div 307).
• Losing a domicile of choice requires the opposite, i.e. ceasing residence in that country; and an intention to cease residence permanently and indefinitely. Again, both elements must be present at the same time for domicile of choice to be lost (Re Marrett [1887] 36 Ch D 400).

Once divorce proceedings are commenced in England and Wales then either party to the divorce has jurisdiction to make an application for financial remedies.

Forum/jurisdiction

Divorce in England and Wales can only be challenged on very limited grounds including where the English/Welsh Court does not have jurisdiction. The jurisdiction criteria is set out above.

There is an additional jurisdictional ground for same sex marriages where they are unable to divorce elsewhere.

In considering habitual residence and domicile, it is both a legal test and a fact-based analysis. For habitual residence, as set out above it is necessary to show that the jurisdiction is your ‘centre of interest’. You can only have one habitual residence. There is no one determinative feature but in most cases it is where someone lives and has their roots. To determine this the Court will consider where they are living and the length of time there, where they work, where any children attend school, their degree of social integration, and other similar factors. They do not need to intend to live permanently in their habitual residence.

For domicile, this is a more technical concept, though again the Court will consider relevant facts. Everyone has a domicile of origin which they acquire at birth, which is based on their parents’ domicile as explained above, and can acquire or lose a domicile of choice as addressed above which is different from their domicile of origin. They will consider the circumstances of someone’s life to consider if they have gained or lost a domicile of choice that would impact jurisdiction. This will consider where the parties live and how settled they are in that place, any long term plans to reside there or elsewhere, and other factors such as where they wish to be buried.

Stays

If the English or Welsh Court has jurisdiction as above, it can nevertheless stay divorce proceedings in some cases, or order that divorce proceedings not take place in another country depending on the decision made. This applies where multiple countries have jurisdiction to divorce to avoid competing litigation in multiple countries, which may happen if one country is seen to be more financially advantageous for a divorce and associated financial matters.

Since leaving the EU, the ‘lis pendens’ or first in time rules no longer apply and the Court considers which is the most suitable forum (‘forum conveniens’). This means just submitting a divorce application first is not determinative.

The Court has the power to order a stay under Section 5(6) and Sch 1 of the Domicile and Matrimonial Proceedings Act 1973 (‘DMPA’) where there are concurrent proceedings in another jurisdiction over the same marriage.

If there are proceedings in a ‘related jurisdiction’ (such as Scotland, Northern Ireland, Jersey, Guernsey, and the Isle of Man), if the following applies:

• the parties have lived together since the marriage; and
• the place where they lived together when the proceedings were begun or where they lived together last is in that related country; and
• either party was habitually resident in that related country throughout the year ending with the date of the application for divorce or the date on which they last resided together;

then there must be an obligatory stay of the proceedings in England/Wales.

In respect of other jurisdictions, the Court is not required to order a stay but has the power to direct a discretionary stay following consideration of which forum would be most appropriate. This applies where there are ongoing proceedings in respect of the marriage outside of England and Wales, and ‘the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that foreign jurisdiction to be disposed of before further steps are taken in the proceedings in the English court.’

The test of fairness and convenience considers the impact of the proceedings in England and Wales. The Court will consider if one jurisdiction is the most natural forum for the dispute, considering where the parties have the most real and substantial connections. The Court will take into account all relevant factors including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed. If another jurisdiction is considered to be the more natural jurisdiction, the Court could nevertheless order a stay if a party can show that this is necessary for justice.

This test is fact specific and the Court has a wide discretion, and will consider factors such as the parties’ nationalities and domiciles, where the assets are located, where the parties and any witnesses are located, and their connections to the jurisdiction. They can also consider the ability to enforce any orders in other jurisdictions, and the impact of any jurisdiction or choice of law clause in a nuptial agreement.

In England and Wales, divorce is governed by English law whenever English courts have jurisdiction. Indeed, even before Brexit, the EU ‘Rome III Regulation’ which allowed choice of applicable law in divorce did not apply in the UK. Therefore, English law has always been the only applicable law in the English courts.

An applicable law clause in a nuptial agreement may be relevant in terms of any initial jurisdiction dispute in that it may support that particular jurisdiction, but it would not be conclusive and would just be one of many factors taken into account.

The no-fault divorce system came into force in England and Wales on 6 April 2022 and this change was part of the Divorce, Dissolution and Separation Act 2020. The following criteria must be met to obtain a divorce in England and Wales:

1. The parties have been married for at least 1 year before divorce proceedings are commenced;
2. The court has jurisdiction to deal with the application (based on habitual residence or domicile); and
3. The marriage has irretrievably broken down.

The divorce does not need to be consented to by both parties and save for any dispute over jurisdiction or the validity of the marriage, the divorce application cannot be contested.

The broad procedure is as follows:

• The applicant prepares a divorce application which consists of basic factual details of the marriage and a statement of truth confirming that the marriage has irretrievably broken down.
• The marriage certificate must be provided together with a court fee (these days a copy is submitted but the original can be requested so must be retained). A certified translation of the marriage certificate must be provided if it is not in English.
• The court issues the application which starts the divorce process.
• The court (or the applicant) then serves the application on the respondent and must do so within 28 days after the application is issued.
• The respondent completes an acknowledgment of service within 14 days.
• 20 weeks after the divorce application is issued, the applicant can apply for the ‘conditional order’.
• 6 weeks and 1 day after the conditional order, the applicant can apply for the final divorce order. The final divorce order brings the marriage to a legal end.
• In the event that the applicant does not apply for the final divorce order then the respondent can apply for it 3 months after the applicant became eligible to apply.
• The entire process is ordinarily done online. Even if done on paper, neither party need to attend court.
• Factoring in the court processing time, it generally takes around 6 to 8 months from start to finish unless the parties choose to intentionally delay the final order to deal with finances (or indeed delay at any other stage).

The divorce process is separate from any application for a financial remedy. Note that:

• Once the conditional order is granted only then does the court have jurisdiction to approve or make a financial remedy order.
• That financial remedy order cannot be legally enforced until the final divorce order has been granted.

In the vast majority of cases the court now serves the divorce application directly on the respondent. This is commonly done by email but can be by post. Alternatively, the applicant can choose to personally serve the respondent. This can be done by way of:

• a process server;
• first class post;
• document exchange (DX); or
• email (provided that the respondent has clearly indicated consent to that method, e.g. in writing through their solicitor). Family Procedure Rules 2010 (FPR) 6.23 and Practice Direction 6A.

The application must be served within 28 days of issuing.

In the event that service is to be outside of the jurisdiction, the applicant must apply to the court for permission or directions under FPR 6.43-6.48. Service methods vary by country. The applicant must provide proof of service.

If the applicant cannot serve the respondent, it can ask the court to consider one of the following:

• Deemed service FPR 6.34 – Asking the court to treat the respondent as having been served.
• Dispensation of service FPR 6.36 – The court can dispense with service entirely (this would be rare but could be relevant where there is strong evidence that it has proved impossible to locate the respondent)
• Alternative service FPR 6.19 – The court can authorise other methods such as email, social media or service on a relative if it is considered likely to reach the respondent.

While the process for a sole divorce application is set out above, it is also possible for the parties to make the application together, known as a ‘joint application’. The key differences are as follows:

• The terminology changes from ‘applicant’ and ‘respondent’ to ‘applicant 1’ and ‘applicant 2’. There is no ‘respondent’.
• When the application is submitted, each applicant must complete a statement of truth.
• Each applicant must acknowledge receipt of the proceedings.
• At the conditional order stage, each applicant must confirm that they wish to proceed.
• The application for the final order of divorce must also be made jointly.
• An application that begins as a joint application can be changed to a sole application if one party decides they no longer wish to pursue divorce proceedings or refuse to progress the proceedings. The spouse who is no longer participating in the proceedings is called the respondent from this stage of the proceedings.
• An application that begins as a sole application cannot be changed to a joint application.

Foreign marriages;

Yes, foreign marriages are generally recognised in England and Wales, provided that certain conditions are met:

• The marriage must be legally recognised in the country where it took place. This means that the parties must have complied with the requisite procedures in that jurisdiction in order to legally marry, which typically includes things such as registration, witnesses and marriage age;
• Each party must have capacity to marry in line with the laws of the jurisdiction they are domiciled in at the time of marriage; and
• Any previous marriage must have been lawfully dissolved, in line with the requirements of the law of England and Wales.

It may also be necessary to produce proof of the marriage, notably the original marriage certificate.

Foreign civil partnerships / civil unions;

Yes, foreign civil partnerships can be recognised under the law of England and Wales, although the position is slightly more complex than that of marriages.

By virtue of section 212 of the Civil Partnership Act 2004 (CPA), a couple will be treated as having formed a civil partnership from having a registered overseas relationship if the following criteria are met:

• The relationship must have been a specified relationship* or a relationship which meets the general conditions;
• The relationship was registered with a reasonable authority in a country outside of the UK, by two people, neither of whom was already lawfully married or a civil partner;
• The couple must have had the capacity to enter into a relationship under the relevant law; and
• The couple must have met all of the requirements necessary to ensure the formal validity of their relationships under the relevant law.

*A specified relationship is defined by section 213 of CPA, and refers to a same-sex relationship registered in accordance with Part 1 of Schedule 20. This sets out a list of countries and a description of the types of relationship considered to be specified. Not all countries or relationships are specified within this. It is however still possible to qualify as an overseas relationship if the other conditions of section 212 are satisfied.

Customary marriages

A customary marriage contracted outside England and Wales is governed by the law of the country where it was celebrated. A marriage will generally be recognised in England and Wales if it is recognised in that country. It may be necessary to instruct a single joint expert to advise on the likelihood of the marriage being recognised under the relevant foreign law.

Religious marriages.

Similarly, religious marriages will generally be recognised in England and Wales if they would be recognised as a legal marriage in the country they occurred in.

Yes, same sex marriages are recognised in England and Wales, by virtue of the Marriage (Same Sex Couples) Act 2013. Two people of the same sex can marry if they are:

• Aged 18 or over;
• Not already married or in a civil partnership; and
• Not closely related.

In England and Wales, same-sex couples enjoy the same rights and responsibilities as those in opposite sex marriages. The same extends to civil partners through the Civil Partnership Act 2004.

England and Wales also recognise same sex marriages and unions that took place in another jurisdiction. By virtue of the Marriage (Same Sex Couples) Act 2013, same-sex couples who married abroad are treated as legally married in England and Wales, provided their marriage is valid under the laws of the country in which it took place.

Additionally, Part 5, Chapter 2, section 215 of the Civil Partnership Act 2004 holds that two people are treated as having formed a civil partnership as a result of having registered an overseas relationship if:

• They had the requisite capacity under the relevant law to form a civil partnership; and
• They met the requirements to ensure the formal validity of the relationship in that jurisdiction.

Sections 22, 22ZA, 23, 24, 24A, 24B and 24E of the Matrimonial Causes Act 1973 (MCA 1973) set out the key financial orders a court can make on divorce. In determining a fair financial outcome, the court makes reference to the section 25 MCA 1973 factors.

Capital

Lump sum orders

The court may make a lump sum order on or after an order for divorce, nullity or judicial separation. The court may make an order for a series of lump sums, a single lump sum to be paid by instalments, or a deferred lump sum. Generally, the court can only make capital orders on one occasion, and orders over capital cannot be varied. However, it is possible for the court to vary a lump sum payable by instalments.

Property adjustment orders

Property Adjustment Orders (PAOs) include orders for the transfer and settlement of property, and orders for transferring property are the most common type. The court can transfer property to which a party is entitled either in possession or reversion.

The property subject to a PAO is usually real property (i.e. the matrimonial home). However it could also be shares, life insurance policies, or anything capable of being valued in money or money’s worth.

A PAO is a final order, and there is no provision for these orders to be made in the interim. The court can only make one PAO for an item of property, but can make PAOs for different items of property within the same order. PAOs cannot be varied.

Order for sale (of property)

The court can make an order for the sale of property, albeit not in isolation. It can only be made when the court is making either an order for lump sum payments, secured periodical payments, or property adjustment. The purpose of the order is to support the implementation of the related capital order. An order for sale can be made alongside the making of these orders or any time after making such an order. They are final orders and they will only come into force after the final order is granted. The court may make an order for sale over any property in which either one or both parties have a legal or beneficial interest.

Pension Sharing Order

Pension Sharing Orders split the benefits within a pension scheme, giving each spouse their own separate entitlement – either within that same scheme or through two separate schemes. A portion of one party’s pension is allocated to the other, who can either retain it within the existing scheme (if permitted) or transfer it to their own pension plan.

Pension attachment order

Pension attachment orders are types of lump sum or periodical payments orders.

They cannot be made in respect of a pension that has already been dealt with through a pension sharing order between the parties.

Pension attachment orders do not divide the pension into two separate funds. Rather, it entitles the ex-partner to receive a portion of the pension benefits when the pension-holder begins to draw them. These orders are used much less commonly than pension sharing orders and tend to be used only if a pension sharing order is not practical or possible or where a pension is in payment and a pension sharing order would have a detrimental impact on one of the parties.

Income

Spousal periodical payments orders

The Court may make an order for spousal periodical payments at the time of, or following, a divorce, nullity or judicial separation. Such an order will only be granted if required to ensure a fair outcome, taking into consideration the principles of needs, compensation and sharing.

These orders require the paying party to pay a monthly figure to the financially weaker party. However, it is possible to agree that a capital figure will instead be provided, so that the paying party is able to pay maintenance by way of one capital payment.

In the first instance, the court has a duty to consider a clean break (this is where the financial obligations of each party towards the other terminate as soon as is just and reasonable after the final order is granted). However, a clean break may not be appropriate in some circumstances, for example where one party has no earning capacity or a reduced earning capacity, meaning they will require maintenance payments in order to meet their needs.

These orders will be made for such a term as the court thinks is necessary. They are subject to either:

1. The remarriage or subsequent civil partnership of the payee; or
2. The death of either party.

It is possible for the court to vary an order for spousal periodical payments, by virtue of section 31(1) MCA 1973.

The court has a wide discretion as to the division of assets and will take into account the factors listed under section 25 MCA 1973.

The starting point is equal sharing of matrimonial assets, although the court will depart from equality where there is a genuine need on behalf of one party for a greater share of the matrimonial pot (i.e. a reduced mortgage capacity meaning they will need more equity form the family home in order to suitably re-house themselves).

The court made clear in White [2002] that there is to be no discrimination in favour of the working spouse against the home-maker.

The court will also consider whether compensation is necessary in the case. A party may be entitled to compensation if they made financial sacrifices for the marriage. An example of this could be giving up a career to care for children.

Non-matrimonial property, such as those acquired before the marriage or received through inheritance, will be excluded from sharing, unless they are needed to meet the financially weaker party’s needs. However, an exception is often made for the matrimonial home, which is often considered matrimonial property regardless of whether it was owned by one party before the marriage.

Maintenance pending suit

The purpose of maintenance pending suit is to offer interim financial support to the financially weaker party whilst divorce proceedings are ongoing, but before a final financial settlement is reached. This requires one party to pay periodical payments to the other at a specified rate until the final order is granted, or the application for the matrimonial order is dismissed. It is possible for these orders to be backdated to the date of the application for the matrimonial order, but not earlier.

Maintenance pending suit cannot be granted after the final order has been granted. An applicant will typically apply for maintenance pending suit where their income from all sources is insufficient to meet their own reasonable needs arising from the marriage, and where their spouse is able to meet the deficiency from their surplus income received beyond meeting their own reasonable needs. The parties’ capital resources will also be considered when determining interim maintenance claims. If capital is available to meet income needs it will be considered if it is appropriate to do so rather than incurring the additional costs of an interim maintenance application.

Legal services payment order

The court may also grant a legal services payment order to help cover a party’s legal expenses during proceedings. The court can require that payment is made by virtue of a lump sum or through specified instalments and can consider the wider assets in the case.

The applicant would need to show that they cannot reasonably obtain legal advice during the proceedings to justify a legal services payment order being granted (section 22ZA(3) MCA 1973). The party must therefore demonstrate that they cannot reasonably secure a personal or litigation loan, and are unlikely to be able to obtain legal services with a charge being granted over any assets recovered in the proceedings.

Factors taken into consideration by the Court

For both types of cases the court will consider the need for proportionality, and the financial needs, resources, obligations and responsibilities each party currently has, or is likely to in the foreseeable future.

Specifically for MPS the Court considers:

• The needs / earning capacity of the applicant;
• The marital standard of living and rectifying a perceived unfair balance of incomes;
• Reasonableness (which is also viewed in light of what would be fair in the circumstances) (section 22 MCA 1973).

Specifically for a LSPO the Court considers:

• The matters in issue within the proceedings;
• Steps the parties have taken to avoid the proceedings;
• The effect the LSPO would have on the paying party and whether they have got legal representation;
• The applicant’s conduct in the proceedings.

When dealing with spousal maintenance, the court is guided by section 25 of the Matrimonial Causes Act (MCA) 1973 and by the three strands of fairness identified by the House of Lords in Miller v Miller; Mcfarlane v Mcfarlane [2006] UKHL 24: Needs, Compensation and Sharing.

Case law has established however that the sharing principle is not applied to spousal maintenance SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam).

Compensation based awards are extremely rare but this was relevant in Mcfarlane v Mcfarlane [2006] UKHL 24 where the wife had given up a lucrative career as a solicitor to support her husband’s career and care for their children. Lord Nicholls described this as a ‘relationship generated disadvantage’.

In practise ‘Needs’ is the primary consideration. This means that spousal maintenance is awarded if one party needs it to help meet their reasonable outgoings. An assessment of needs looks at each party’s income and earning capacity as well as their reasonable outgoings.

“The overarching objective is to enable a transition to independence without undue hardship” SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam).

There are four orders that can be made related to spousal maintenance:

1. A ‘clean break’ on income claims: no spousal maintenance and no ability to seek spousal maintenance in future, even if there has been a change in circumstances;
2. ‘Nominal spousal maintenance’: a nominal figure is awarded, such a £1 per year. This keeps the claim open and acts as a safety net as the nominal order can be varied to a substantive spousal maintenance order if there is a change in circumstances.
3. Spousal maintenance set as a specific figure for a term of months or years:
   – with a s.28 (1A) MCA 1973 bar meaning it is not possible to extend the term; or
   – without a s.28 (1A) MCA bar meaning there is the possibility to apply to extend the term prior to it expiring.
   The order may also include stepped increases or reductions over time.
4. Joint lives orders: spousal maintenance on an ongoing basis to cease only on the death of either party. These orders are increasingly less common.

Key points to note:

• Spousal maintenance is always capable of variation, either up or down.
• It will automatically cease if the receiving party remarries.
• It will automatically cease if either party dies, unless the order makes specific provision in the event of the payer’s death. This would generally be an undertaking by the paying party to enter into an irrevocable deed of convent to make provision for the spousal maintenance whilst the order subsists.
• There is no standard formula for calculating the amount or duration. It is based on the individual circumstances of any particular case and the Judge’s discretion. The Judge must consider all relevant circumstances of the case including the clean break principle and if relevant whether there would be any undue hardship.
• It is common to index-link periodical payments so they increase with inflation (most often linked to CPI or RPI but RPIX is also possible).
• It is possible to capitalise spousal maintenance by way of a lump sum or series of lump sums. This also has the effect of meaning the maintenance cannot be varied. (It could however be varied if ordered as a lump sum by instalments which is distinct from a series of lump sums and the intention should be made clear on the order.) When calculating the appropriate capitalised sum, practitioners use the ‘Duxbury tables’ (arising from Duxbury v Duxbury [1987] 1 FLR 7) which take into account life expectancy, inflation, capital growth and income yield.
• Whilst uncommon, it is possible for an order to secure spousal maintenance payments so they are safe and guaranteed. A secured spousal maintenance order would not automatically end on the death of the payer as the fund would remain after their death.

The UK is a member of ‘The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 23 November 2007’ (The 2007 Hague Maintenance Convention) which provides mechanisms for the recognition and enforcement of maintenance orders for participating countries. Maintenance includes child and spousal maintenance but can also go beyond this and include lump sum or property adjustment orders if they are considered to come under the umbrella of ‘maintenance’.

England uses the Article 23 process which provides simply for a review of the papers, no opportunity to make submissions but an opportunity for the respondent to object. Part 34 of the Family Procedure Rules sets out the relevant procedure.

Once the order has been recognised it can be enforced in the usual way that a domestic order would be in England and Wales.

If the order that needs to be recognised pre-dates the UK being a signatory to the 2007 Hague Maintenance Convention (August 2014) then the above may not apply. Furthermore, it would not apply if the order is from a country that is not a signatory. Those will be case dependent in terms of what needs to be enforced and where the order was made. Part III of the Matrimonial and Family Proceedings Act (MFPA) 1984 may also be relevant where the court can make fresh orders for financial relief after an overseas divorce.

When enforcing an order for the payment of money, it is possible to either:

1. Make an application to the court specifying the remedy of enforcement sought; or
2. Make a general enforcement application which allows the court to determine the appropriate method.

Specific methods of enforcement include:

• Attachment of earnings – where income is deducted at the source by the employer
• Third-party debt order – funds held by a third party can be seized – e.g. a bank account
• Charging orders – a charge over land or other assets
• Writ or warrant of control – seizing and selling goods
• Appointment of a receiver – a third party appointed to assist in preserving / gathering property
• Judgment summons – can be committed to prison (not covered by the general enforcement application).

Other points to note:

• In the event that there are arrears of more than 12 months then permission of the court is required to make the application.
• Undertakings that meet required formalities are also enforceable as if they are court orders.

The Court can make orders for financial relief after an overseas divorce under Part III of the Matrimonial and Family Proceedings Act (MFPA) 1984.

Some key points to note:

• An overseas country is a country other than the UK, the Channel Islands and the Isle of Man (section 27 MFPA, Schedule 1, Interpretation Act 1978).
• Either party to a marriage can apply, providing that the divorce, annulment or legal separation is recognised as valid in England and Wales (sections 45 to 49 of the Family Law Act 1986 sets out the grounds to be recognised as valid).
• The marriage itself must be recognised under English law as valid or classed as void or voidable (as opposed to a non-marriage).
• If a party has subsequently re-married, they are not entitled to make an application under Part III.
• The English court can only make an order if it has jurisdiction to do so under one of the following:
  – Domicile – either party is domiciled in England and Wales on the date of the permission application or was domiciled on the date of the divorce, annulment or legal separation.
  – Habitual residence – either party is habitually resident in England and Wales for a period of 1 year ending with the date of the permission application or the date when the foreign divorce, annulment or legal separation took place.
  – Matrimonial home – at the date of the permission application, either party has a beneficial interest in a house in England and Wales that was at some time during the marriage used as the matrimonial home of the parties. Where this is the only ground for jurisdiction, the court is only able to deal with that property or its value (Aldoukhi v Abdullah [2021] EWHC 3086 (Fam)).
• The application is a two-stage process. The applicant must first seek leave (permission) to apply. If granted, the applicant can proceed with the substantive application. However, where the parties consent, the two stages can be consolidated.
• The court may not grant permission unless it considers there is ‘substantial ground’ for making the application (section 13(1) MFPA 1984). The court also considers a list of factors under s16(2) including:
  – Parties’ connections, including connections to England and Wales;
  – Financial relief;
  – Enforceability of the order;
  – Time elapsed since the decree of divorce; and
  – Overall merits of the case.
• The court conducts a two-stage test in determining whether or not to make a substantive order:
  – The court must consider whether in all the circumstances of the case it would be appropriate for the order to be made by a court in this country; and
  – Determining whether it is appropriate to make an order using s.16(2) MFPA 1984.
• The substantive orders available to the court are the same as those provided for under Part II of the MCA 1973 on divorce, annulment or separation. (Save for if the matrimonial home is the sole ground of jurisdiction relied on, as set out above).

There is no marital property regime in England and Wales and marriage does not change the ownership of assets during the marriage. Upon divorce there can be a presumption of sharing of marital assets and not sharing non-marital assets but this is subject to needs and other arguments as explained elsewhere, and is not therefore a default regime. Financial remedies upon divorce are governed by consideration of the factors set out in section 25 MCA 1973.

A foreign property regime would not automatically be recognised and followed on a divorce in England or Wales but would be a circumstance of the case that would be a relevant factor for the Judge to consider. In some cases they can be treated as similar to a nuptial agreement, depending on whether the formalities for such agreements can be met. Please see the response below in respect of the treatment of nuptial agreements.

Nuptial agreements, provided they are valid, are a key consideration in England and Wales, but they are not binding, though where compliant with Court requirements (especially meeting needs) could be followed entirely. The Court has the power to make an order that does not follow the terms of such agreements (either partly or fully) if they consider it necessary to do so.

However, nuptial agreements are considered a relevant factor of a case and are highly persuasive. The leading case on nuptial agreements is Radmacher v Granatino [2010] UKSC 42. In this, the Supreme Court confirmed that the Courts “should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”. This does not create a presumption that they are binding, but means that if a number of safeguards are met when the agreements are signed, they are likely to be given considerable weight. The Court will consider whether the agreement is fair in all the circumstances, and will also consider whether it was entered into freely, and whether the parties had a full appreciation of the implications of the agreement i.e. whether they have received independent legal advice, and whether there has been financial disclosure. There is further guidance that where possible the agreement should be signed 28 days before the wedding.

Nuptial agreements will be relevant whether created in the jurisdiction or in another jurisdiction. However, the jurisdiction it was created in will be relevant in considering whether the parties should be held to it, and the extent to which the safeguards are required. If for example the agreement was made in a jurisdiction where they are known to be binding or are a common part of marriage, this will be a relevant consideration for the Court.

Child maintenance is governed by the Child Maintenance Service (CMS) or the Court depending on the circumstances including the income of the paying parent.

For parents of children who are habitually resident in England & Wales, a child maintenance liability arises when they live in separate households and is determined by the Child Maintenance Service (CMS). The CMS determines child maintenance using a formula. This can consider various potential deductions but the main criteria takes into account the paying party’s gross income (after pension contributions), the number of overnights the child spends with the parent per year, and any other children they are responsible for.

If it is determined that there is equal shared care between the parents, there would be no child maintenance payable under CMS. However this is not just a question of the amount of time spent with each parent and even if time is spent equally the CMS will not necessarily consider this to be equal shared care, factoring in the situation on the ground. They can consider more than just the number of overnights and factor in how the care is shared. If no CMS assessment has been made as there is equal shared care, it is possible to make an application to the Court for a child maintenance order (OS v DT [2025] EWFC 156 (B)).

If the paying party lives overseas, then the Child Maintenance Service will not have jurisdiction unless they are a member of the armed forces, working for the UK government or paid by a UK based company.

If the paying parent earns over £156,000 gross per year (a weekly income of £3,000 (or more) gross each week) then a maximum assessment will be made by the CMS. This gives the Court power to make ‘top up’ orders pursuant to the legislation below. To obtain this there usually needs to have been a maintenance calculation undertaken by the CMS and in force in respect of the child.

If child maintenance is payable under the CMS, then it is paid until the child finishes full time secondary education or other approved education or training, or turns 20, whichever is the earlier. The amount payable can increase or decrease each year depending on the paying parent’s income.

As above, there are circumstances where the Court would instead be able to order child maintenance as follows:

• The CMS does not have jurisdiction;
• The parties make an order by consent;
• In prescribed situations such as where there is a ‘top up’ order as below.

If the parents are seeking financial orders following a divorce, if there is a maximum assessment determination by the CMS or if the CMS do not have jurisdiction to make an assessment, the Court can make a further order for child maintenance. This is not guaranteed and the Court must be satisfied it would be appropriate for there to be further child maintenance in addition to that already payable, based on the circumstances of that particular case. This can be payable up to the end of tertiary education, depending on circumstances. In deciding the appropriate level of child maintenance, in some cases the Court may consider a revised version of the CMS formula (as set out in James v Seymour [2023] EWHC 844). In other cases, a more holistic approach considering the outgoings can be taken into account. The Court also has the jurisdiction to order child maintenance on a divorce where the paying parent lives overseas.

In certain cases it is possible to seek maintenance under Schedule 1 of the Children Act 1989, for parents where there is a ‘top up’ assessment or where the CMS otherwise does not have jurisdiction. This law is for provision for children and is most often used by unmarried parents. Child maintenance can be ordered up to the end of tertiary education and may be based on a budget of outgoings. Children over the age of 18 can in some cases claim directly against the parent.

If there is no top up assessment then a parent can seek maintenance under Schedule 1 for support for expenses for a child’s disability.

In addition to the above, school fees orders can be made which direct a parent to pay private school fees or other educational expenses which is a form of maintenance payment but separate from the above obligations.

Yes, the Court can make orders for financial provision for a child. Often the children’s needs are taken into account as part of the wider needs in a divorce to ensure the child’s housing and other needs are met. If the parents are unmarried, one parent can make a claim under Schedule 1 Children Act 1989 for capital provision for a child as well as maintenance as above. The wider financial provision that can be ordered are settlement of property, transfer of property, and lump sum payments as well as periodical payments i.e. maintenance (Paragraph 1, Schedule 1 Children Act 1989).

This capital provision can include claims for housing. However, under Schedule 1 there would generally not be an order for an outright transfer of property or lump sum payment to meet housing needs, but most commonly a settlement of property for the child’s minority which would continue to be owned by the paying parent. This would mean that a property would be provided for the parent to live in with the child, until the child finishes secondary or tertiary education. This can be in the form of a lease over the property or a trust. Once the child is an adult, the property would usually revert to the paying parent. This is a one-off order and it is not possible to make multiple claims for the settlement of property for the benefit of the same child against the same paying parent (Section 1 Sch 1 Children Act 1989).

In some exceptional circumstances, the Court can make provision for housing beyond the child’s minority to meet their needs if they have a disability that requires it.

As well as settlement of property, the Court can order lump sums for the benefit of the child. Multiple claims can be made for lump sums and can cover not only lump sums directly for the child, but also to cover wider family costs for the child’s benefit e.g. a lump sum for the purchase of a car or furnishing a property.

To consider if orders for housing or other lump sums should be made, the Court would consider the needs of the child and the resources of the paying parent, to consider if they have sufficient funds and can afford to make these payments.

There is no specific recognition of cohabitation and it does not generally give rise to any rights or obligations (except in relation to protective orders as below). There is no common law marriage and there is no law which changes the status of cohabiting couples after a certain period of time or if different criteria is met.

The exception to this is in respect of obtaining a non-molestation order or occupation order in cases of domestic abuse, where it is possible to apply for these orders against a cohabitee who is considered a related person.

There are no specific claims for cohabitees upon separation as cohabiting is not a recognised relationship status giving rise to claims. Upon separation it is possible that there might be claims under property law if the property was owned by one or both of them. These claims would be brought under the Trusts of Land and Appointment of Trustees Act 1996. This is a civil law claim and deals with circumstances where one person may have contributed towards the property in some manner or be considered to have acted to their detriment in reliance on an understanding that they would have an interest in the property. This understanding needs to be mutual, but does not have to be written or a clear verbal conversation and can be inferred from conduct. If it is found that someone does have an interest in property in this manner, then the Court can consider the wider relationship setup and how they dealt with for example expenses beyond the direct property expenses, to consider what interest the parties have (Stack v Dowden [2007]).

Beyond this, any claims would be made under any relevant civil claims and are not linked to their cohabitation.

If the parties are engaged and their engagement ends, it is possible to bring limited claims under the Married Women’s Property Act 1882.

When separated parents disagree on key issues in relation to their children, the primary question is not whether they were (or are) married, but whether each has Parental Responsibility (PR).

PR is defined by section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. In practice, this means a parent with PR has the right to make decisions for the child on key issues such as where they live, their education and medical treatment.

A child’s mother automatically has PR. The father will also have automatic PR if they are married to or in a civil partnership with the mother when the child is born.

If not, the father can acquire PR in the following ways:

• By being named on the child’s birth certificate (for children born on or after 1 December 2003);
• By subsequently marrying or entering into a civil partnership with the mother;
• By entering into a PR agreement with the mother (which must be witnessed by the Family Court);
• By applying to the Family Court for a PR order;
• By adopting the child or becoming the child’s guardian.

Where a child has two female parents, the birth mother automatically has PR, and the other mother may acquire PR by the same methods listed above.

If both parents have PR, they have equal status. If they cannot resolve disputes on the exercise of their PR, they will need to seek an order from the Family Court (see Question 22).

A parent without PR may also seek an order. If that parent is then named by the Court as someone with whom the child will live, the Court must make a PR order. If they are named as someone with whom the child will spend time, the Court may make a PR order.

A party seeking to instigate children proceedings in the Family Court must establish the child in question is habitually resident in England and Wales on the relevant date, or that they meet one of the other criteria below.  Establishing habitual residence will depend upon the specific facts of each case.  The ‘relevant date’ refers to the date the application for an order (or variation of an order) is made or if there is no such application then the date on which the court is considering whether to make (or vary) the order.

For proceedings commenced post-Brexit (after 31 December 2020) issues of jurisdiction are now determined under the 1996 Hague Convention (whereas prior to this date they are dealt with under Brussels II Revised) or the Family Law Act 1986, depending upon the other jurisdiction involved in the dispute.

The Family Law Act 1986 sets out a list of the orders, often referred to as ‘Part I orders’, which it has the power to make. This includes an order under section 8 of the Children Act 1989 (‘section 8’), which includes child arrangements order, prohibited steps order and specific issue order (although it expressly excludes an order varying or discharging an order under section 8).  The Court also has the power to make certain orders in relation to a child using its inherent jurisdiction of the High Court, some of which being Part 1 orders (including giving care of a child to any person or providing for contact with, or the education of, a child).

The Family Law Act imposes a number of conditions upon the court’s jurisdiction and ability to make an order with respect to a child.  For example, the court shall not make a child arrangements order under section 8 unless it has jurisdiction under the 1996 Hague Convention or, where that jurisdiction is not met, it must be established that the child is habitually resident in England and Wales or is present in England and Wales and is not habitually resident in any part of the United Kingdom (and in either case, the jurisdiction of the court is not excluded where matrimonial or civil partnership proceedings in Scotland or Northern Ireland) or the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings in England and Wales.

Following a separation, arrangements need to be considered for children and how they will spend their time with each parent. Some parents are able to agree child arrangements directly between themselves and the court will not step in or make an order in those circumstances. This is known as the “no order” principle. Parents are always encouraged to agree matters relating to their children if at all possible.

The court shall have regard to the general principle that any delay in determining the upbringing of a child is likely to prejudice the welfare of that child.

If there is a disagreement about child arrangements, one person can apply to the court for a Child Arrangements Order. Child Arrangements Orders were introduced to replace ‘residence’ and ‘contact’ orders in relation to children’s time.

There are 3 different types of order:

• A Child Arrangements Order. A court has the power to make a child arrangements order regulating with whom and when a child is to live with, spend time with or otherwise have contact with any specific person.
• A specific issue order determines a specific question which has arisen or which may arise in connection with an aspect of parental responsibility for a child. Examples of these kinds of orders are in relation to a child going on a specific holiday overseas, attending a certain school, having a particular medical treatment (including vaccinations) or in relation to a particular religious event.
• A prohibited steps order confirms that a certain step should not be taken without the consent of another party or the court. Examples of these kinds of orders are to prevent a person from taking a child out of England and Wales, particularly if there are concerns that the child will not be returned, or about a specific planned trip.

The welfare of the child is the court’s paramount consideration. The court will consider the welfare checklist to decide what is in the best interests of a child. The welfare checklist considers factors such as the wishes and feelings of the child, the child’s physical, emotional and educational needs, the likely effect on the child of any change in circumstances, the child’s age, sex, and background, any harm which the child has suffered or is at risk of suffering, and how capable the person applying for the order is of meeting the child’s needs.

The older a child, the more weight is given to their wishes and feelings by the court, and the court would not generally make orders for the child arrangements for a child over the age of 16.

In relation to the voice of the child, when making decisions, the court may be assisted by a report from CAFCASS (The Children and Family Court Advisory and Support Service) or from Social Services to ascertain the child’s wishes and feelings and to obtain further information from the parents or other relevant parties. CAFCASS is an independent public body. Their role is to safeguard and promote the welfare of children, through giving advice to the family courts, making provision for children to be represented where needed, and providing information and support to children and their families. A CAFCASS officer will be allocated to the case at the start. Before the first hearing, they are required to undertake safeguarding checks so that they can inform the court of any risk of harm to the children. This includes checks with the relevant local authorities and the police. It also involves the officer speaking to the parties to identify any risks to the child. This is usually done by way of a short telephone call and is simply to identify if any party believes that the children are at risk. Once the checks are complete, the CAFCASS officer writes a safeguarding letter to the court with their findings, and sends a copy of this to the parties.

In some circumstances, the court will order that a more detailed report should be prepared to assist the judge, which is called a Section 7 report. This will usually be prepared by CAFCASS but can be done by the local authority if they have already had involvement with the child. In some circumstances, it can be prepared by an Independent Social Worker instructed by the parties. The report will usually inform the court of the children’s welfare and their wishes and feelings, as well as making a recommendation about the arrangements for the children based on what the officer/social worker thinks is in their best interests. The children’s wishes are not determinative, but the person preparing the report will want to gain an understanding of the child’s relationship with the parties and how the proposed arrangements fit their best interests. In order to prepare the report, the officer/social worker will probably meet with both parties separately, as well as with the children. This will be done in a very careful, child specific way and in a manner that works for the children involved. The officer may also contact third parties involved with the children including their schools to ask them about their progress and welfare. Sometimes the child is separately represented in court proceedings by a Guardian. In certain circumstances the child will be provided the opportunity to have their voice heard in court proceedings by speaking to the Judge.

If one parent wishes to relocate with the child to another part of the jurisdiction of England and Wales (an ‘internal relocation’), the correct approach is to apply for a Specific Issue Order under Section 8 of the Children Act 1989. Parents seeking to oppose a move apply for a Prohibited Steps Order under the same section. The outcome of such an application will be based on the welfare of the child. One aspect of this analysis will be the impact of the parent wishing to move and the consequential impact on the child. Usually only where there are persuasive reasons that the proposed move would not be in the child’s best interests is an application for internal relocation denied.

In cases where one parent wishes to relocate with the child outside of the jurisdiction (known as ‘leave to remove’ applications, the parent must also apply for a Specific Issue Order. Like with internal applications, the core guiding principle is the welfare of the child. For many years the case of Payne v Payne [2001] EWCA Civ 166 was the leading authority which gave considerable weight to the primary carer’s proposals and their likely distress (and the consequent impact on the child) if such an application was refused. In many cases following Payne v Payne, this was treated as a presumption in favour of granting a genuine, well-planned application. Since then, the law has shifted away from this rigid presumption (see the case of MK v CK [2001] EWCA Civ 793) and now such applications are decided based on a more global and holistic evaluation of welfare. Each parent’s proposal, be that for relocation or remaining in the jurisdiction, should be assessed carefully on its own merits. Parents are encouraged to set out detailed proposals including where they will live, where the child will be educated, what support network they will have available to them, their proposals for contact with the other parent etc. Understandably cases where the proposed move is to a jurisdiction which is further away and with a significant time difference e.g. Australia are less likely to be granted than proposals involving shorter distances, but the merits in each case will be weighed up. There is no presumption either way. Each case will be decided on its own facts and the child’s best interests.

A child’s permanent relocation overseas can also engage rights under Articles 6 and 8 of the European Convention on Human Rights (ECHR). As a result the court may apply a proportionality analysis given the potential gravity of the consequence of the relationship between one parent and the child being severed. This analysis is not expressly required in all cases and in case could be said to form part of the court’s standard welfare analysis.

Rights of custody

The question of which parent obtains rights of custody over the child will be determined by virtue of the law of the relevant member state in which the child was habitually resident prior to their removal from that jurisdiction.

Enforceability

By virtue of the 1996 Hague Convention, foreign orders made in respect of a child are to be enforced in England and Wales through certain reciprocal enforcement obligations. For example, Article 24 of the Convention governs the position where an order made in one contracting state is to be recognised in another contracting state. Adherence to Article 23 of the Convention would stipulate that an order made in England and Wales should be recognised automatically in another contracting state (subject to the measures under which recognition may be refused, as listed in Article 23(2)), and sometimes further measures will need to be deployed before an order is automatically enforceable in another contracting state (see Article 26).

Moreover, where an order was issued before the end of the Brexit transition period, the provisions of Brussels II Revised shall apply. This stipulates that orders made in relation to parental responsibility will be enforceable in another member state once served, provided the relevant member state has rendered the order to be enforceable.

Mirror orders

Where a country is not a signatory to the 1996 Hague Convention, a mirror order can be used to enforce a foreign order.

Mirror orders are generally enforceable in England and Wales where they are in line with the 1996 Hague Convention and the laws of that jurisdiction. However, validity can depend on a number of factors, notably:

• Whether it is valid in the jurisdiction in which it was made;
• Circumstances surrounding the order; and
• Current location of the child.

If a parent removes a child from the jurisdiction without the other parent’s agreement or permission from the court, then they will have abducted the child. Abduction is a criminal offence. The left behind parent needs to have rights of custody before they can bring proceedings for child abduction which in England simply means parental responsibility but different countries have different rules. We are a signatory of the Hague Convention 1980 and our central authority is the International Child Abduction and Contact Unit (ICACU). The underlying spirit of the Hague Convention is that children should be returned to their country of habitual residence, which means the country where they were living prior to the abduction in order for the Court of that country to make a decision about the children’s future welfare.  There is a one year time limit for issuing an application under the Hague Convention. The English Courts interpret the Hague Convention very strictly and will order a return to the child’s country of habitual residence unless the abducting parent manages to successfully plead one of the limited defences under the Convention.  The defences are, both limited and strictly interpreted.  The possible defences are the consent or acquiescence of the left behind parent, a strong objection by the child of being returned, or a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention proceedings are summary proceedings and dealt with on an emergency basis as expeditiously as possible ideally within 6 weeks.

In cases where the countries involved are not a signatory to the Hague Convention, the court applies different rules and considers what is in the best interests of the child. These are often wardship proceedings under the court’s inherent jurisdiction.

Surrogacy is legal in the UK and offers a pathway to parenthood for a diverse range of families, including LGBTQ+ individuals, unmarried and solo parents however, it is governed by strict rules and procedures. For example, surrogates may only receive reimbursement for reasonable expenses – such as medical costs and loss of earnings – and any form of commercial surrogacy or advertising is prohibited. While surrogacy agreements are encouraged to clarify expectations and build trust, they are not legally enforceable. Birth certificates issued at birth also name the surrogate as the legal mother meaning that when the child is born, the intended parent/s must apply to the UK court for a post birth parental order to transfer parenthood and extinguish the surrogate’s legal rights.

Due to the legal limitations surrounding surrogacy in the UK, many British-based intended parents opt for international surrogacy arrangements. In several countries, surrogacy is governed by enforceable contracts, and birth certificates issued at birth often name the intended parents as the child’s legal parents. These arrangements are typically commercial in nature, with surrogates receiving compensation that exceeds what would be considered reasonable expenses under UK law. While such payments are not prohibited, they are subject to scrutiny during the UK parental order process. When intended parents apply for a parental order following the child’s birth, the family court will carefully examine the nature and extent of the payments made to the surrogate. The court must be satisfied that the payments do not contravene public policy and may retrospectively authorise them if doing so is in the child’s best interests and all statutory criteria for the order are met.

Adoption is a legal process through which an individual or couple assume permanent care of a child/ren following a thorough assessment by a local authority or registered adoption agency. In the UK, adoption is open to a wide range of applicants, regardless of marital status or sexual orientation. This includes LGBTQ+ individuals, single people, married couples, civil partners, and cohabiting partners.

To be eligible to adopt, applicants must meet several initial legal requirements. They must be at least 21 years old (with no upper age limit), habitually resident in the UK (typically having lived in the UK for at least one year) or domiciled in the UK, and must not have been convicted of certain prescribed offences, including sexual offences or crimes against children.

If British adopters wish to pursue adoption overseas, they must ensure they meet the legal criteria of the country in question. Some jurisdictions may restrict adoption by LGBTQ+ individuals or impose other eligibility requirements, others may prohibit adoption all together.

Once a UK family court grants an adoption order, legal parenthood is transferred from the child’s birth parents to the adoptive parent(s). A new adoption certificate is issued to reflect this legal change. Adoption orders are intended to be permanent and typically require the involvement and consent of the birth parents, unless the court determines that consent can be lawfully dispensed with.

The use of non-court dispute resolution (NCDR) has increased significantly over recent years. The options for NCDR within family law are as follows:

• Mediation – a voluntary, private and confidential process where a trained mediator assists the parties in reaching a resolution (either with or without the parties’ lawyers presents).
• Arbitration – a voluntary, private, legally binding process where the parties jointly appoint their arbitrator. Used either for proceedings as a whole or discrete issues.
• Collaborative Law – a voluntary, non-adversarial approach focusing on cooperation and using joint meetings with lawyers trained in this approach.
• Early Neutral Evaluation (ENE) – a voluntary, private and non-binding process where an independent evaluator gives an impartial assessment of what the likely outcome of their dispute would be if it went to court – generally used in children cases.
• Private Financial Dispute Resolution (FDR) – the same process as ENE but specific to financial remedy cases and always heard on a ‘without prejudice’ basis.

None of the above are compulsory and can only be entered into providing that both parties agree. There is however a requirement that anyone making a financial remedy application to the court must first attend a Mediation Information Assessment Meeting (MIAM) and provide evidence that they have attended. A MIAM is a preliminary meeting where a qualified family mediator provides information about the mediation process and assesses whether or it would be suitable. There are a handful of exemptions where a MIAM need not be attended, including urgent matters or where there has been domestic abuse.

Whilst substantive NCDR is not compulsory, parties must inform the court of any form of NCDR attempted prior to each court hearing and explain why that forum was not the right way of resolving the dispute (Form FM5). Furthermore, in recent cases, some judges have adjourned proceedings so parties can engage in NCDR (NA v LA [2024] EWFC 113).

Any agreement reached in NCDR (including an award reached in arbitration) needs to be converted into an order of the court to ensure it is binding and enforceable.

A key area for reform is cohabitee rights. With an increasing number of couples choosing not to marry but form serious and abiding relationships, there is considered to be a risk of unfairness, especially where the couple have children and one parent may take a step back in their career to raise children.

The current Government confirmed in its manifesto in the 2024 election that it would bring in cohabitation reform. There is no clarity on what this will look like and different legal campaign groups have pointed to the regimes in Scotland, Australia, and Ireland as possible models, while others have pointed to a proposal from the Law Commission from 2007 which created an opt out regime for cohabitees.

The government intends to host a consultation as to what form this reform will take. It is not anticipated it will give rights matching married couples but will put in place some limited financial claims. No timeframe for this proposed reform has been confirmed.

Family court hearings are generally conducted in private meaning that the starting point is that only the parties, their lawyers and court officials can attend. The Transparency Reporting Pilot was introduced to increase openness in family cases, including financial remedy proceedings and to balance transparency with privacy. The press cannot automatically attend but can make a formal application to attend and report. Where permission is granted, there may still be reporting restrictions around certain information. Family Court judgments can be published where transparency serves the public interest (in particular under the Transparency Reporting Pilot which for financial remedy cases is set to conclude in January 2026) and will not necessarily be anonymised.

In England, divorce does not invalidate a will if one has been made. However, it does have an impact on the will and any gifts to the ex-spouse will not take effect (with the ex-spouse being treated as if they had died). If an ex-spouse is named as an executor in the will this will also no longer take effect.

If the party does not have a will and intestacy law applies, the ex-spouse would no longer inherit under the default intestacy rules which they could have done if they were a spouse.

There are various tax exemptions for inheritance between spouses which would no longer apply after the divorce has been concluded.

Under English law it is possible to bring a claim against someone’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. The claims that can be brought by an ex-spouse are more limited than those that can be brought by a spouse. In addition, it is generally the case that upon the making of a final order in respect of the finances arising from a divorce, an order will be made which generally prevents the parties from making a claim under this law upon the death of the other entirely, or limiting claims that can be brought (usually if maintenance is ordered).