When is a divorce really final?

By Dawn Coller
Partner at Metcalfe Copeman & Pettefar Solcitors

It is a common misconception that a divorce means the end of any financial claims, it does not. Some people have found themselves facing claims by an ex spouse years after the divorce was made final, perhaps even after they have remarried.

This is particularly damaging if they have in the meantime done well in life, inherited property, built up a business or even won the lottery. An ex wife or husband can make a claim against income and capital, even if it has been acquired after the divorce, unless there is an appropriate order made within the divorce proceedings.

Are simple divorces actually simple?

It is relatively simple to get divorced nowadays, a basic divorce package is even available on the internet. It is however vital to ensure that you not only obtain the final divorce order, known as Decree Absolute, but also a final order dealing with financial issues.

The initial divorce petition must contain the appropriate financial claim, and this must be followed up by a separate financial order at a later stage in the divorce. It is in both parties interests to try to agree as much as possible about the division of finances, this can be done by direct discussions, at mediation or by negotiations with the assistance of solicitors. If agreement is not possible, the court can make the decision.

Even if everything is agreed, you should not just let matters rest there. The court should be invited to make an order setting out what has been agreed and dismissing remaining claims both against the other spouse and also against their estate after death. This is commonly known as a clean break order, but to be effective the order does need to be carefully worded, ideally by a solicitor.

Protect your present and future finances

Another advantage of a financial order is that it means you can apply back to the court for assistance in enforcing the order if the other party does not stick to what was agreed. Furthermore, if you have agreed that one spouse will receive a share of the other's pension, the pension company will need a court order before they can share the pension.

The financial order should deal with all the income, capital and pensions owned by each party to the marriage, whether they own it in their individual names or jointly with each other or a third party. Capital includes money investments such as bank accounts and ISAs, houses and also interests in business if one party has business assets, for example if they are a sole trader, a partner, or a shareholder in their own company.

Why do you need a financial order?

A properly worded order can ensure that what each of you agree should happen, does actually happen, and no more. Each party can then face the future secure that anything they build up after that order is no longer vulnerable to claims from their ex husband or wife.

Dawn Coller is a Partner who specialises in Family Law at Metcalfe Copeman & Pettefar Solicitors
www.mcp-law.co.uk