Giving consideration to the divorce process

Giving consideration to the divorce process

In the media January is always associated as ‘Divorce’ month, as people tend to break away from the family unit after celebrating one final Christmas.

Camilla Hooper, Associate at Cripps Pemberton Greenish, has shared her thoughts with Today’s Family Lawyer on the divorce process.

With the relative simplicity and success of the Government’s online divorce portal, one might be forgiven for thinking that obtaining a divorce is not an involved process; the extent of the task to navigate a handful of tick-boxes and drop-down screens in making the initial application and apply for decree nisi before patiently awaiting the decree absolute. However, a common misconception of the litigant in person is that the divorce starts and finishes here, and that with the decree absolute comes the end of the financial relationship.

When seeking a divorce, couples also need to give proper consideration as to how their property, investments, cash, belongings, business interests or pensions, should be divided, as well as whether one party should pay the other any maintenance. For the sake of maintaining positive relationships with children, or wider family members, parties will often reach informal agreements, and often without the involvement of a solicitor. However, this may be problematic if the informal financial settlement agreement is never recorded in a consent order, approved by a judge in the family court. For example:

  1. If a party remarries after divorce, and without a financial settlement, this may bar them from pursuing the full range of financial claims available under the Matrimonial Causes Act 1973.
  2. It is not possible to share by agreement any pension schemes without the court making a pension sharing order. Often a pension is one the most valuable assets in marriage, after the family home.  If one or both parties are approaching retirement age, the sharing of pensions assets, and the income derived from those pensions, can be extremely important.
  3. Any ‘informal’ financial settlement is not legally enforceable. For example, if one spouse drags their heels in selling the family home, or goes back on an agreement or seeks to renegotiate, there is no recourse to the courts other than an application for financial remedies.

It is extremely important to understand that there is no statutory time limit on when a financial claim can be made by either party during or after divorce.   Any delay or failure to deal with the financial matters arising from a divorce could potentially have severe consequences. This was highlighted by the case of Ms Wyatt and Mr Vince in 2015.

If Ms Wyatt and Mr Vince had addressed the financial arrangements at the time of their divorce it would have been a very straightforward matter.  They did not , though, and there was no court order and neither Ms Wyatt’s nor Mr Vince’s financial claims were dismissed.

Following the decree absolute, the parties led their separate lives; Mr Vince went on to enjoy financial success with his green energy business, which saw him quickly become a multi-millionaire. Ms Wyatt, on the other hand, went on to have two more children, and led a modest lifestyle. Eighteen years after the decree absolute was granted, and having not remarried, Ms Wyatt made an application in the divorce proceedings for financial provision in the form of a lump sum of £1.9million. Mr Vince cross-applied to strike out Ms Wyatt’s application.

Following a series of appeals, the matter was ultimately considered by the Supreme Court.  The Supreme Court found that there is no basis upon which an application for financial remedies following a divorce can be struck out, even if it has little to no prospect of success.  This means a claim for financial provision can still be pursued even after many years have passed since the dissolution of the marriage.  It is worth noting that, even though Ms Wyatt was successful in the Supreme Court, this still resulted an agreement that Mr Vince would provide Ms Wyatt a capital sum of £300,000 – considerably less than the £1.9million that had been originally sought, and after considerably legal costs had been incurred by both parties.

At the time of the judgment, family solicitors were quick to use Ms Wyatt’s success in the Supreme Court as a cautionary tale for any clients reluctant to pursue a full and final resolution of the matrimonial finances on divorce.   The warning is clear; couples getting divorced should still take legal advice in respect of their financial claims and ultimately seek a final court order.  To not do so could be very costly indeed, especially if one party goes on to financial successful and good fortune

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