Posted by Victoria Emens, Solicitor
Is divorce a financial clean break?
So you’ve made the difficult decision to get divorced. As far as you’re concerned, there are no joint assets to divide and you’re clear that once the divorce is over you can each go on your way and start afresh. Does your ‘decree absolute’ mean that your financial affairs with your ex are resolved forever?
Unfortunately, in family law, it’s not quite as simple as that; divorce in itself doesn’t dismiss all financial claims arising out of a marriage. The only thing that achieves that dismissal is a formal court order, either imposed by the court or made by agreement, creating a financial clean break between you both.
There can be circumstances where one party remarrying will end that party’s right to bring claims against their former spouse but is that really something you want to rely on?
Why pay for a financial court order?
If there really are no assets to resolve, preparing a simple order providing for a clean break can be done for a fixed fee. You may feel that it’s an expense you don’t need at the time of your divorce but there’s no doubt that the legal costs, and financial consequences, of doing nothing could be far greater if the question of financial claims subsequently raises its head.
Two recent cases show very clearly the importance of ensuring there are no loose ends when you divorce. In the case of Wyatt v Vince the couple got divorced when they had nothing. However, there was no proof that a clean break order had been made – one said it had and one said it hadn’t. 22 years later one was still living in comparative poverty while the other was now a multimillionaire. He has probably now parted with at least one of his millions in legal fees alone, arguing unsuccessfully that his former wife should not be allowed to make a financial claim against him so many years after their divorce.
More recently in the case of Briers, Mr Briers set up a company during the marriage which has now grown to the point of being worth millions. When he and Mrs Briers divorced, he thought they’d reached an agreement to resolve their financial issues. But the agreement was never made into a binding court order and some eight years after the divorce, Mrs Briers issued a court application seeking what she considered to be an appropriate financial settlement.
She pointed out that there was no financial order and that the agreement they had made in 2005 was conditional on Mr Briers giving a detailed picture of his finances, which she said he hadn’t. Both the initial court and the Court of Appeal agreed with her.
These stories illustrate that it’s better to be safe than sorry and prevention is always cheaper than cure! Our specialist divorce lawyers would always recommend that anyone involved in divorce takes advice about their financial claims and makes sure they are properly resolved at the time of the divorce.
Family law solicitors who combine expertise with understanding