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Is Absolute really absolutely the end?

View profile for Joanna Souter
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Divorce rates between heterosexual couples hit 45-year low

We are frequently receiving enquiries from clients who, having gone through the divorce process, now find themselves exposed to a litany of problems. The common theme throughout is a misunderstanding in relation to the Decree Absolute in their divorce, specifically that while it confirms the couple are now divorced, it does not signal the end of the financial matters for them and their ex-partner.

The divorce process is now much more accessible, with the new online portal helping couples to submit their own applications and often going through the whole process without instructing a solicitor. This does, however, come with the consequence that many people are not receiving legal advice early on about the financial aspect of separation and divorce. In an attempt to assist those going through divorce alone, we have highlighted some common horror stories that we have come across:  

An agreement is not binding

Contrary to popular belief, as solicitors, we are pleased when couples reach amicable agreements quickly after their separation. What is less pleasing is when couples, after reaching their agreement either verbally or in writing, carry on with no further thought to making the agreement legally binding. 

Take, for example, a scenario where the couple agree that the wife can continue living in the former matrimonial home until their child leaves school at 18. The couple agrees that the house will be transferred to the husband once the child finishes their schooling. The couple do not, however, get a consent order approved by the court setting out exactly what they had agreed to. Without an order, the husband is left in a difficult position when their son’s 18th birthday comes around without anything legally binding to ensure this arrangement takes place.

Obtaining a consent order at the time of the agreement would have avoided this scenario. Among the court’s powers includes the ability to make an order for the transfer of property into an individual’s name at a certain point in time. Having such an order would have provided the husband with the security he needed.

The door is still open to claims

After the Decree Absolute is made, it will still be open for either party to make a financial claim against the other.  There are some exceptions to this that you should also be aware of (see our helpful blog on the remarriage trap) and it is always important to get legal advice in relation to your own set of circumstances.

A client of ours found themselves in a sticky situation when, having embarked upon a purchase of a new property with their partner, their ex-spouse informed them that they wished to discuss their financial arrangements. Our client simply hadn’t realised that the possibility for claims remained open even after the Decree Absolute. Luckily, the couple were able to quickly reach an amicable agreement which was then approved by the court within a consent order. By including a clean break direction within the order, the couple ensured that no further claims would be made against the other.

Circumstances change

Which leads on to the final word of warning, circumstances change. Even if at the time of your divorce you and your spouse decide that you simply do not have assets worth discussing, which may not be the case in the future.

The classic cautionary tale in this regard is Mr Nigel Page who found himself facing a claim from his ex-wife 10 years after their separation, after a win of £56 million in the Euro millions. The couple had not obtained a clean break order after their divorce and so Mr Page’s ex-wife was able to make a financial claim against Mr Page. The couple were able to reach an agreement out of court, for a payment of £2 million to the wife.

While Mr Page’s circumstances are particularly unique, people can often find themselves in a different position a few years after the divorce, for example due to promotions or business successes. Again, it is always advisable to get legal advice in relation to your own personal circumstances. 

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