Family Solicitor, Kit O’Brien, explains that even if you get divorced, your former spouse can still make a financial claim on your assets unless a court order is made.
I’m occasionally asked why anyone needs a Solicitor to get a divorce these days when you can do it via the internet. ‘And once you’ve got divorced’, they say, ‘then that’s that, isn’t it?’
Well, no, it isn’t actually.
The internet is a wonderful thing and has revolutionised our lives. You can get almost anything from it, but users have to be careful. You can download a guide to removing your own teeth without the aid of a dentist if you want, but that doesn’t make it a good idea.
Online divorce can be okay, if you get it right. If you don’t however it is likely to cost you far more to undo what has gone wrong than it would have cost to get it done properly in the first place. Worse still, it may not be possible to undo what has happened, resulting in a very costly outcome.
The biggest mistake is to think that the granting of a Decree Absolute, as well as dissolving your marriage, draws a line under the financial issues between you and your former spouse. It doesn’t. Financial claims arising out of a marriage remain live after the Decree Absolute, which is something many people simply don’t appreciate. If you started the divorce (so you were the Petitioner), provided your divorce petition was properly completed, your claims will stay live until a court order is made resolving or dismissing them. If you were on the receiving end of the divorce (the Respondent) your claims will stay live again until a court order is made or until you remarry.
The financial claims that you have against your ex, or they against you, may not be significant. They could however be substantial. It all depends on the particular circumstances of your marriage and your finances. Either way, if you’re going to move on and rebuild your life it is overwhelmingly sensible to ensure that you do so knowing where you stand in relation to your marital finances so that you can make sure that nothing comes back to haunt you later.
If you’re both agreed that there are no financial issues to be resolved and you’re just going to go your separate ways you can ask us to draft a simple agreement dismissing all financial claims now and in the future. The court can be asked to approve the agreement so that it becomes a court order binding upon you both. The court isn’t obliged to approve the agreement, but provided it’s satisfied that it is fair to you both it is likely to do so.
At Slee Blackwell we can prepare the agreement and the documentation to accompany it for a fixed fee. If we think that the agreement you want to make is not in your best interests we’ll tell you and you can then decide whether you want to proceed with it or not.
You may think that if there’s nothing to resolve you don’t need to worry about a formal Court Order because nothing will ever happen. I suspect that is what a man called Dale Vince thought. He was divorced well over 20 years ago after a short marriage in which he and his wife led a traveller lifestyle, with no money or assets. Since the divorce however Mr Vince has become a pioneer of green energy, and a multimillionaire along the way. His former wife, Ms Wyatt, said that because she had (in her view) been left to care for the children of the family without any support, she should be able to make a financial claim against Mr Vince even though it was over 20 years since they had divorced.
There’s a bit of a mystery as to whether any financial order was ever made because the court file for the divorce went AWOL. Mr Vince said there was an order; Ms Wyatt said there had never been one. No order could be found and after each party had spent eye watering amounts on legal fees the Supreme Court recently decided that Ms Wyatt was entitled to bring a financial claim against Mr Vince, regardless of the passage of time. It’s debatable whether she will ultimately get anything approaching the capital she initially sought, but it’s a clear demonstration of the importance of achieving certainty at the time of a divorce and a warning to all those who fail to do so.
Even if your particular circumstances are such that you can’t achieve a complete clean break at the time of your divorce, a court order can still be made, setting out what you have agreed in relation to finances. This will make it certain that claims are brought to an end fully and properly with no nasty surprises lying in wait.
For FREE initial advice on how we can help you tie up the financial loose ends so that things don’t unravel at a later date call Kit O’Brien on 01823 354545 or email her at kit.o’[email protected]