The introduction of ‘no-fault’ divorce in April 2022 made the divorce process more accessible, affordable and amenable, helping to reduce conflict by removing the need to apportion blame for the breakdown of the marriage and moving the process online.
However, whilst information provided by HM Court and Tribunal Service is helpful, in guiding parties through the divorce process, we are increasingly finding ourselves having to address the following issues with clients who have proceeded for divorce without legal advice:
The Final Order (finances)
In our practice, when parties undertake the divorce process without legal advice, they, address all financial matters between themselves without any formal arrangement being put in place.
Typically, parties will report that they have done so to keep costs to a minimum, because they have few assets of value and/or because the relationship was amicable and they sought to prevent avoidable confrontation (perceived to be created by lawyers).
It is for these reasons, that the person submitting the divorce application will not, when asked in the application whether they wish to apply for a Financial Order for themselves (and/or for the children), select this option. They fear that this will begin contentious financial proceedings which they seek to avoid.
However, if there is no Final Order (finances) there is no time limit for financial claims following divorce (Wyatt v Vince [2015]). Therefore, if years down the line your financial circumstances improve (i.e. through inheritance, a lottery win, or a significant pay rise) there is nothing to prevent the other party in the divorce from making a financial claim against you (so long as they have not remarried – see below).
The Court will, upon the application being made, consider the financial arrangements for the parties at the time that the Order is made; if either party to the divorce wants to argue that assets/income acquired post-separation should not be considered in the pot for sharing, the onus will be upon them to make and argue this point. In our experience, the longer things are left unaddressed, the greater the cost to investigate, address, and resolve the issues.
The best way to avoid being left vulnerable to further financial claims from your ex-spouse is to set out the terms of the arrangement within an order, approved and sealed by the Court, together with orders confirming waiving any further claims arising from the marriage/divorce.
The ‘re-marriage’ trap
The second matter to consider is the prospect, and impact, of the ‘re-marriage’ trap.
The trap occurs when an individual obtains the Final Order (divorce) and subsequently remarries without having made an application for financial remedy (i.e. lump sum order, order for sale, and/or periodical payments).
If you are the applicant in the divorce, and have checked the box (referred to above) applying for a financial order within the application for divorce, then you are ‘deemed’ to have made an application – even though a formal application has not been made (by using Form A). The applicant, in this case, would be protected and, after remarriage, would still be able to apply for a financial remedy from their former spouse.
The same cannot be said for the respondent in the divorce, or the applicant who does not apply for a financial order in the divorce application. They will not be able to apply for a lump sum order, spousal maintenance, or a property adjustment order in their favour.
The ‘re-marriage’ trap does not, presently, prohibit an application for a pension sharing order.
If you would like any advice in relation to the divorce process, finances on divorce, or any other aspect of family law our specialist Family law team at Berry Smith are able to help. Please do not hesitate to get in contact via family@berrysmith.com or 01656 645525.