With the recent change in the law allowing no fault divorce, many separating spouses are considering pursuing the process without legal advice. However, there is one very important reason you should still obtain legal advice. The financial claims you have against one another arising from your marriage will remain alive indefinitely until there is either a Final Financial Order dismissing all claims, or if one party remarries after the divorce and does not submit an application to the court for financial claims before remarrying. This results in an automatic dismissal of their claims against the other party (except for a claim for a pension sharing order that cannot be dismissed) A Final Order (formerly known as a Decree Absolute) in the divorce does not automatically dismiss financial claims.
So what does it mean if you finalise your divorce without dealing with financial matters?
Ultimately, it means that either ex-spouse could pursue the claims they had as a result of the marriage later in life (despite the divorce itself being finalised). It may be that following the divorce you amicably agree with your former spouse how to split your assets. However, without a formal Court Order detailing this it is not legally binding.
Here is a real life example that we have experienced to show what could happen:
Husband and Wife separated and agreed that the Husband would pay the Wife 50% of the equity from the house and she transferred the house into his sole name. They divorced, but did not obtain a Financial Order reflecting what they had done with their finances.
The Wife continued to look after their child but due to her financial circumstances she was forced to rent and use the money she received from the house in order to meet their needs going forwards. Ultimately, it became apparent that the agreement did not meet their needs.
Five years later the Wife took legal advice and decided to deal with the financial claims that had not been resolved following the divorce. She was able to obtain a further lump sum payment and claimed against the Husband’s pension. If the Husband and Wife had entered into a Financial Order at the time of the original transaction, the court may have approved the order dismissing the Wife’s claims entirely.
It is for this reason that it is very important to obtain legal advice even if you wish to deal with the divorce yourself.
If you are facing difficulties in your relationship and wish to discuss your options, please do not hesitate to contact our family department on 01622 759 051 or at maidstone@gillturnertucker.com.