When The Divorce, Dissolution and Separation Act 2020– the "no fault" divorce – was enacted in April 2022, it was rightly hailed as one of the most significant developments in divorce law in England and Wales. This has allowed for a more amicable divorce process to take place, without some of the animosity associated with the old process.
There two parts to every divorce or dissolution, the divorce or dissolution itself and the division of finances. The new rules also brought with them the possibility of filing a joint application for divorce, as well as a sole application. One or both parties therefore need to make a statement confirming the marriage has irretrievably broken down. A joint application requires joint commitment, and when one party stops engaging in the process, this can lead to administrative issues and the other party should take legal advice.
Many married couples poised on the brink of an amicable divorce waited until the new law was enacted before actually embarking on filing for a divorce, believing that they could manage much of the procedure themselves. Furthermore, they believed they would save money on legal fees as the process was now more straightforward. It should be noted that the amendments affected the application for divorce or dissolution, and not the financial elements associated with the divorce.
In many cases, parties come to an agreement between themselves if they have decided to mutually and respectfully divorce. This can lead to the financial arrangements being dealt with less vigorously and without consideration of the possibility that the situation may not remain the same. Furthermore, this can mean that parties simply divorce and divide assets by consent, without considering a court order to confirm and regulate the agreement for division.
As the years pass by and new relationships are forged, attitudes and circumstances can change. The financial arrangements may have been satisfactory at the point of divorce however, changes in circumstances can mean one party is now in a worse position. A final order (decree absolute) does not automatically dissolve a couple's financial ties. If, over time, an ex-spouse is not as financially comfortable as they were previously, they can under limited circumstances revisit their former spouse and make a claim for financial relief.
Daniel Theron, a partner, pointed out "divorce is one of the most significant situations in a person's life, which can have ramifications for years if the legal aspects are not dealt with properly. It is understandable that, because a no-fault divorce is easier, many believe they can embark upon it themselves and many couples feel that there is no need for legal advice as they are in agreement. Unfortunately, the absence of legal advice can and does lead to negative consequences when the legal safeguards are not in place." Daniel further commented "without a Consent Order dealing with the financial arrangements, an ex-spouse may under certain circumstances be entitled to request further financial support, if they are in need. It is imperative to understand the full scope of the consequences of the agreements made at the time of your divorce and not reach decisions that will leave you disadvantaged in the future."
It is imperative that parties seek separate legal advice during a divorce, as the financial agreements arranged between the parties may be unfair to the other party, usually the financially weaker party.
The importance of a clean break Consent Order cannot be underestimated in protecting the finances of the couple and preventing being financially tied to your former-spouse even after separation. Judge's may refuse to approve a Consent Order, when they believe the financial arrangements are unfair to one party. However, Judge's are not simply a rubber stamp, and are entitled to make requisitions. A Consent Order is accompanied by a Statement of Information (D81 form) which outlines each party's financial circumstances.
A Consent Order is far more likely to be approved if the Judge is satisfied that both parties have taken legal advice and are making an informed decision. If a party is unrepresented, the Judge may ask further questions or even list a hearing to ensure that the parties understand the implications of the agreement.
Giambrone & Partners' well regarded divorce lawyers point out in the absence of a Consent Order a former spouse may under specific circumstances return and request a share of any windfalls, higher earnings and in certain circumstances, inheritances based on the needs of a party in a weaker financial position.
The legal precedent for this was established by a Supreme Court ruling in the case of Wyatt –v- Vince in 2015. The couple were married in 1981 and at the time of their divorce they were living a new-age traveller's lifestyle in straitened circumstances with no assets to speak of. Following the divorce Dale Vince went into business and founded the highly successful green energy supplier Ecotricity which resulted in his acquiring a fortune estimated to be £100 million. Whereas Kathleen Wyatt remained living in the same financially limited lifestyle, bringing up their son and her daughter.
In 2010, some 18 years after their divorce, Kathleen Wyatt lodged a claim for financial support. Despite the short marriage and the length of time before the claim was lodged the Supreme Court ruled that Kathleen Wyatt could claim money from her former husband, establishing that there is no time limit for former spouses making claims against each other.
Legal advice in the important issue of the financial arrangements in divorce is invaluable and can save a lifetime of financial demands. Giambrone & Partners' divorce lawyers can assist in providing guidance to secure and protect our clients at a difficult time.
Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law.
Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
