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If you are the Applicant (also referred to as Petitioner) within Divorce Proceedings and Decree Nisi has just been pronounced by the court, you will be in a position to apply for Decree Absolute in 6 weeks’ time. For some, the finality of the divorce can have a huge emotional impact and Decree Absolute is delayed as it is the document that brings the marriage to an end. For others they will be counting down the days to move on with their new life and perhaps even remarry. However, if you do not have a sealed financial order from the Court you should be cautious before making your application for Decree Absolute, and should seek legal advice before doing so.
A Sealed Financial Order will be made by the court within divorce proceedings upon the application of one, or both, of the parties to the divorce proceedings. More often than not, divorcing couples will agree a financial settlement between themselves directly, through mediation, collaborative law or solicitor negotiation. It is important that this financial settlement is recorded in a Consent Order which will be drafted by a solicitor and sent to the Court with a joint application on behalf of both parties.
Financial settlements will not be legally binding unless a consent order is approved and sealed by the Court. If agreement cannot be reached then one party will apply to the Court, which will either result in the parties eventually agreeing a Consent Order, or indeed the Court imposing an order upon the parties.
Many people may find themselves in a position where they cannot afford a solicitor to draft a Consent Order or to represent them in financial negotiations/court proceedings. Some consider it unnecessary to settle the finances, or they have reached an agreement and implemented it so they do not feel they need an order from the Court. Others may find themselves waiting for long periods for a Consent Order to be approved by the Court. So, what are the risks of Decree Absolute being made without having a Sealed Financial Order?
If you were to remarry after Decree Absolute has been pronounced and before a Sealed Financial Order has been made, then you may be barred from applying for any financial settlement from your ex-spouse in the future. Therefore, you must take legal advice if you are considering remarrying without having a Sealed Financial Order, so that you understand the full legal consequences of remarriage without a financial settlement from your previous marriage.
If you are currently waiting for a Consent Order to be approved by the court or you are close to agreeing a consent order, you may think there is no harm in obtaining Decree Absolute in advance. There is a risk that if your ex-spouse was to unexpectedly die after Decree Absolute then you would be divorced and you would not be able to receive benefits for your widow/widower status. These benefits can often amount to quite a substantial sum of money from a pension fund or life insurance policy for example.
Capital and Income Claims in the Future from your Ex-Spouse
There is often a provision in the Sealed Financial Order for a “clean break”. This provision allows for both parties to depart from the divorce with the safety that their ex-spouse will be unable to make any future claims on income, capital or both. If you have obtained Decree Absolute without a Sealed Financial Order incorporating a clean break, there is risk that your ex-spouse may be able to make a claim against you in the future.
This poses a real risk to people who take the approach that they currently have no assets, and therefore do not require a Final Financial Settlement, as in future, their ex-spouse may be making a claim against their future income/assets. Should the financial position change and one party comes into money such as an inheritance or lottery win, they could find their ex-spouse making a claim against such funds. The financial application can be made at any point in the future. At Sousa Law, we have had experience of dealing with such a claim being made by an ex-spouse 17 years after Decree Absolute. There are cases with an even longer intervening period.
Asset transfer issues
If you obtain Decree Absolute without a Final Financial Order, there may be certain assets you can no longer make a claim upon within a financial settlement. These assets can include pensions or assets held abroad which can only be transferred to a spouse. There may also be tax implications from no longer being a spouse which may affect a financial settlement. Specific legal and tax advice may be needed on these circumstances.
Delayed Financial Order Application
After Decree Absolute has been pronounced you can still make an application to the court for a Final Financial Order (depending on the circumstances), however the delay in making such an application can have detrimental consequences. If you wait a considerable amount of time to make an application for a financial settlement, it may be generally more difficult to achieve what you want/need and the merits of your case may be affected. You should therefore seek advice upon reaching a financial settlement as soon as possible and before applying for Decree Absolute. The Divorce Proceedings usually take about 6 months and you should be trying to agree a financial settlement within this period to ensure there is no delay when the time comes to apply for Decree Absolute.
Consent Order has not been approved yet
If you are currently waiting for your Consent Order to be approved by the Court, and Decree Absolute is pronounced before the Consent Order is approved, there is a risk that the Consent Order may not be approved by the Judge, or there are issues with the draft order. The Court will always have to approve the Consent Order and it can be rejected by the court if the Judge considers it to be unfair, or indeed there are issues with the drafting. If you have already obtained Decree Absolute, as said above there may be implications upon the financial settlement you have reached which may mean negotiations have to recommence.
Sousa Law are expert Divorce Lawyers in Southampton. If you have any further questions about the above article or require any Family Law based advice please do not hesitate to contact us on 02380 713060 or firstname.lastname@example.org.
By James Looi and Catherine Sousa
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