It is a common myth that, once a couple obtain a Decree Absolute of divorce, this dismisses their financial claims against each other. While this would be correct if the parties had entered into a Consent Order to reflect the financial agreement they had reached upon divorce, or if the Court has made an Order after a Final Hearing, it is far from being a universal rule.
In the current economic climate, many people will be keen to end their marriage by what they term an “amicable divorce” when they agree how they will divide the matrimonial assets and thereafter agree that they will not make any claims against the other. In many such cases the parties do not feel the need to involve solicitors and will happily act in person in respect of the divorce and obtain the Decree Absolute, thinking that because this ends their marriage it must also end all claims against the other in respect of the marriage. This is not however the case as, if the parties do not have a suitably worded Court Order, their respective claims against the other will remain open even after the Decree Absolute, up until the point that such an Order is made.
Consequently if one party’s financial situation improves dramatically and the other party’s financial situation deteriorates after the Decree Absolute, then the party in the weaker position could apply to the Court for a financial remedy. This could be any Order available to them under the Matrimonial Causes Act 1973, including for a lump sum, property adjustment, maintenance or pension sharing. Even without a material change in circumstances, such applications can arise where one party is influenced by an unscrupulous third party or a new partner.
An amicable split is, of course, a sensible objective for both sides to have. Indeed, the field of Collaborative Law is based on that very principle. But it is in neither party’s interests to store up disputes for a later date. In an amicable divorce the way to avoid such a risk is to enter into a properly drafted Consent Order. This is a document which contains the appropriate terms and which both parties sign, agreeing that those terms are acceptable. It will also include clauses to dismiss any future claims that either party may have over the other under the applicable Matrimonial and Inheritance legislation, therefore giving a clean break if that is what the parties want to achieve. Once the Consent Order is agreed and signed by both parties, and the Decree Nisi has been pronounced, it is sent to the Court where a District Judge will approve the agreement and seal the document. It will then become an Order of the Court and if either party breaches that Order then the matter can be brought back before the Court to enforce the Order’s terms.
If the divorce is not an amicable one and no agreement can be reached, then an application would need to be made to the Court for a financial remedy. This will ultimately produce an Order whether made by consent at the door of the Court, or imposed by a Judge after hearing the case, but it is a process which is likely to be both more costly and more acrimonious than the amicable route.
Whether arrived at amicably or not, though, certainty (in the form of a final Order) is essential to protect a divorcing parties’ respective future interests, particularly if they intend to re-marry or if their financial situation could change significantly to their benefit.