The Decree Absolute does not mean it is all over financially
- AuthorSali Jackson-Thomas
In divorce proceedings, particularly when the parties do not instruct Solicitors, there is a misconception that the Decree Absolute brings an end to financial claims. That is not the case at all.
Spouses and former spouses have rights to make financial claims against the other by applying to the Court for orders for all or any of the following:-
- Maintenance (i.e. income payments)
- Adjustment of property ownership e.g. transfer of a house from joint ownership to the sole ownership of one spouse
- Lump sums (i.e. capital payments)
- Pension adjustment/sharing
These rights can only be brought to an end in two ways. The first and most usual way is by a Court Order. Where one or both spouses do not wish to proceed with financial claims then, provided the Court agrees that such an Order would be appropriate, an Order can be made dismissing their financial claims.
The second way is where someone obtains a divorce and then remarries. In this situation, unless that person has already applied for orders from their spouse in their first marriage before they remarry, then they are caught in “the remarriage trap”. The effect of this trap is that they have lost the right to make financial claims against their former spouse.
Should the spouses decide not to obtain Court Orders dealing with financial provision, and, in the event the remarriage trap does not apply, then the claims which each of them have against the other are simply left open. This situation is unsatisfactory in that it creates a degree of uncertainty because it leaves the possibility of one spouse making a claim against the other at any time.
Even if neither spouse wants to claim against the other, it is better for an application to be made by consent for the respective claims of each spouse to be dismissed (“a clean break”).
The case of Wyatt –v– Vince made the headlines last year. This was a case in which Ms Wyatt and Mr Vince were married in 1981. There was one child of the marriage and Ms Wyatt also had a child from a previous relationship who was brought up as a child of the family. Ms Wyatt and Mr Vince separated in 1984. At the time of their separation neither had any assets and had very little, if any, income. They did not get divorced until 1992. From the late 1990s, Mr Vince’s business took off and he became a multi-millionaire. In 2011, i.e. 27 years after the parties’ separation and 19 years after the Decree Absolute, Ms Wyatt made a financial claim against Mr Vince.
The case made its way to the highest judicial authority in the country – the Supreme Court – who said the wife had a valid financial claim because her contribution to raising the children was a valid claim and she had a right to have that claim heard.
Claims are not extinguished until the Court makes a final Order. There are all kinds of events which could occur in the future such as winning the lottery, receiving a substantial inheritance, or indeed success in business. It is therefore essential to have a Court Order to protect you from any future claims.
Sali Jackson-Thomas is a family law Solicitor with some 25 years experience providing family legal advice. Sali is an expert in cases involving family businesses, pensions, overseas trusts, and assets outside the jurisdiction. Sali and her team have been actively involved in developing new approaches to partnership and living together agreements for many years.
For more information contact Sali on email@example.com or telephone 01792 525413
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