Many people mistakenly believe that once they are divorced, the financial ties between them and their spouse are severed. However this is not the case.
A divorce deals with the dissolution of your marriage. Therefore, once the Decree Absolute has been pronounced you are divorced. However, your financial claims against each other remain intact. Meaning your former spouse could make a claim against you at any time into the future. (except when you have remarried, which limits the claims you can make – see below)
This is still the case, even if you have reached an agreement with your spouse regarding the division of assets.
How do I sever the financial ties with my spouse?
You are able to dismiss your spouse’s claims against you, within a Court Order. This is known as a Consent Order (Financial Remedy Order).
The Consent Order is prepared by your solicitor. It sets out the agreement reached between you and your spouse in respect of the finances. As well as confirming the relevant clauses to provide for a clean break and dismiss any future claims – provided this has been agreed.
Once the Consent Order has been agreed and signed, it is sent to the Court for approval. This is a paper exercise and you do not need to attend Court. On the basis the Consent Order is approved and stamped by the Court, you will have a binding settlement. This means that, save in specific circumstances, your former spouse will not be able to make a financial claim against you in the future.
It should be noted that you are only able to secure a Consent Order within divorce proceedings and after the Decree Nisi (the first decree needed to dissolve your marriage) is pronounced.
The importance of a Consent Order
The importance of securing a Consent Order is illustrated in the high-profile case of Wyatt v. Vince 2016.
In this case, the husband and wife married in 1981, but separated only a few years later in 1984.
The Wife petitioned for divorce and a Decree Absolute was pronounced in 1992.
However, in view of the fact the party’s financial circumstances were modest, it seems that they did not feel it was necessary to deal with the financial aspects or obtain a Consent Order. Therefore, their financial claims against each other remained open.
Many years after the parties had divorced, the husband went on to build a multi-million-pound wind farm business.
In 2011, the wife issued financial remedy proceedings against the husband (19 years after the Decree Absolute had been pronounced).
After a great deal of litigation (and legal costs), the Court ordered the husband to pay to the wife a lump sum. As well as the costs she incurred in the litigation.
If the husband had obtained a Consent Order, providing for a clean break and dismissing his wife’s claims against him, the wife would not have been entitled to make a claim against his fortune (which was accrued post-divorce).
It should be noted that the facts of this case are very specific and an award may only be considered in certain circumstances.
However, the case does highlight the importance of securing a Consent Order in divorce proceedings. Regardless of the value or complexity of the assets involved – you never know what may happen in the future.
Remarrying before resolving the finances
As confirmed above, after the Decree Absolute has been pronounced, your financial claims against your spouse remain open. Meaning either of you could make a financial claim against the other at any time in the future.
However, if you remarry before resolving the finances, you may be prevented from making a financial claim in the future. This is known as the remarriage trap.
This is another important aspect which is also often overlooked by separating spouses.
The rules regarding remarriage and the impact on you differs depending upon the circumstances. However, the main elements can be briefly summarised as follows:
- If you were the petitioner in the divorce, and you have remarried, you may still be entitled to make a claim against your former spouse. Provided you or your solicitor ticked the relevant boxes on the Divorce Petition in relation to making a financial order. This effectively means that your financial application was made on the divorce petition and before your remarriage. It is usual practice to tick these boxes in the divorce petition. Even if you don’t intend to pursue an application for a financial order. However, by ticking the boxes, you are ensuring your claims remain open.
- If you were the petitioner in the divorce, but did not tick the relevant boxes on the divorce petition, you may be prevented from bringing a claim against your spouse (save in limited and certain circumstances).
- However, if you have applied to the court in Form A to resolve the finances, you may still be able to make a claim against your former spouse. Provided the Form A was sent to the court before you remarried.
- If you were the respondent in the divorce, you have not applied to the court in Form A and you have remarried. You will then be prevented from bringing a claim against your former spouse (save in limited circumstances).
In view of the fact you may be prevented from making a claim against your former spouse, if you remarry before resolving the financial aspects. It is vital you seek advice before remarrying to ensure you are protected.
Again, the above shows the importance of resolving the finances and securing a Consent Order at the time of the divorce. This will avoid any issues in the future.
If you wish to discuss any of the above issues in further detail, please contact our family law team to arrange an appointment.
In view of the fact all of our circumstances are different, it is always important to seek advice from an experienced family law specialist. To discuss your circumstances and consider the different options available to you.
At Hart Reade, all of our family law solicitors are members of Resolution, which means we are committed to resolving matters by agreement and in a non-confrontational manner.
We can provide you with a wealth of information, advice and support to assist you during what can be a difficult time. If you wish to speak to any of the family law team, please call us on 01323 727321.
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Please note that this article does not constitute legal advice and only provides a brief overview of certain issues. You should always speak to a legal professional to discuss your circumstances and consider your options.