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Insights // 18 February 2019

The Importance of Obtaining a Financial Order on Divorce

Solicitor Catherine Currie, in our leading Family Law team, explains why it is important to obtain a Financial Order on divorce.

A Financial Order in the context of a divorce is an Order made by the Court setting out the financial arrangements of the divorcing parties.  As a result of marriage, spouses automatically have financial claims against each other under the Matrimonial Causes Act 1975 in relation to income, capital and pensions and the Court can make a range of Orders to deal with these claims. 

Many divorcing couples are not aware that their financial claims against each other remain open until such time as the Court has made an Order dismissing them.  Even where spouses have legally ended their marriage and obtained their Decree Absolute/Final Order, this does not necessarily mean that a party is prevented from making a claim against a former spouse or safe from having a claim made against them at some point in the future.

Obtaining a final Financial Order on divorce can help to protect you in the following ways:

Removes the risk of your former spouse bringing an application against you in years to come

There is no time limit preventing an application for a Financial Order many years after a divorce.  It will no doubt come as an unpleasant surprise to you if your former spouse comes knocking at your door in years to come trying to make a claim against your assets.  This happened in a highly reported case in the press called Wyatt v Vince [2015] UKSC 14 where the Wife was allowed to proceed with potential financial claims against her former Husband 18 years after the grant of the Decree Absolute! Whilst it will not necessarily be an easy process for a former spouse trying to make claims after a long delay, it can nonetheless cause unnecessary costs and hassle for the other party in defending the claims.

Helps to avoid difficulties where one party dies

The consequences of a party dying before they have a Financial Order depends on whether the Decree Absolute/Final Order has been pronounced or not at the time of death.  If a party dies before the Decree Absolute/Final Order is pronounced, the marriage will end on death and the surviving spouse will not be able to bring any claims under the Matrimonial Causes Act 1973.  However, the parties will be treated as being married at the date of death for inheritance purposes and the surviving spouse will be entitled to any benefits that arise by virtue of their status as a widow or widower. The surviving spouse may also be able to make a claim against the deceased spouse’s estate under the Inheritance (Provision for Family Dependants) Act 1975. If on the other hand, a party dies after Decree Absolute/Final Order has been pronounced and there is no Financial Order in place, then again the surviving party cannot bring any financial claims under the Matrimonial Causes Act 1973 and they would be unlikely to inherit anything under a Will or the intestacy rules.  They may be able to claim under the Inheritance (Provision for Family and Dependants) Act 1975 but as an ex-spouse their claim would potentially be very limited.  

Helps to prevent falling into the re-marriage trap

If you remarry without having a Financial Order in place with your former spouse, you will lose the ability to bring certain financial claims against them.  However, your former spouse (if they have not remarried) will still have the same right to make a claim against you as if you were both still married.  This can be avoided simply by ensuring you have a Financial Order in place before remarrying or, if you are planning to remarry, ensuring you have made the correct claims for a Financial Order beforehand and taken sound legal advice as to the legal implications of proceeding this way.

So how can I protect myself with a Financial Order?

We have the expertise to assist you obtaining a Financial Order on Divorce so that you can ensure you are properly protected from future financial claims by your ex-spouse.  There are a number of ways you can try to achieve a financial settlement and obtain a final Financial Order.  You do not necessarily need to attend Court and have a Judge impose an Order on you.  Our lawyers can guide and advise you as to all your potential options and discuss which route best suits your particular circumstances. 

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Catherine Currie

Catherine Currie

Senior Solicitor, Family Law

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