Many clients who come to see us say they would like a divorce but are simply not ready or too overwhelmed to deal with their finances. This could be because they are worried that they might have to move house or because they think it will cause acrimony. We would always encourage people to resolve their financial matters at the same time as going through a divorce. It is possible to be creative with a settlement, for example deferring a sale or buy out of the home if someone needs time to get back on their feet or to become independent if they have been supported financially throughout the marriage.
However, we often see people who have dealt with a divorce themselves and have either come to a rough agreement in respect of their assets and bought the other person out of the home informally or never discussed it at all. They have then moved on with their lives and can be quite shocked when the other party suddenly contacts them asking for more money, or even for their share of the home, when perhaps the parties had agreed verbally that no claims would be made.
If they did not take legal advice at the time of the separation, they might not have been aware that they should have obtained a binding court order to stop the other person from going back on an agreement, or simply to stop any claims at all from being made in the future.
Should I consider a financial order if the divorce is amicable?
It is possible, and indeed very common to obtain a court order in very amicable cases. If an agreement can be reached, either directly with the other party, via mediation or via solicitors’ correspondence, then this can be put into an ‘consent’ order of the court and filed at court without anyone having to attend in the vast majority of cases. There is no need for lengthy contested court proceedings, or for matters to become acrimonious. Specialist family lawyers are used to dealing with matters constructively and helping their clients reach a deal everyone is happy with, and maintaining a good relationship if possible, particularly if the parties have children and will be staying in contact with each other for the foreseeable future.
Will my ex-partner have a claim on my future assets?
Not obtaining an order at the time of a divorce can prove very costly indeed as the returning ex-husband or wife is not barred from making a claim 10 or even 20 years afterwards, and though a court will take into account any such delay it could be extremely hard to prove that there was ever a verbal agreement and even if it is written down, if it is not seen to be fair, or in line with what a court might do now, a court has a very wide discretion to make far-reaching orders in respect of the parties assets.
Even if there are no assets changing hands, an ‘clean break’ order can be obtained to provide certainty in the future.
What happens if a financial order has not been obtained and one party remarries?
As a last warning, separating couples should be aware of the ‘remarriage trap’. This simply means that if a divorce is obtained but the finances are not resolved, and one party then remarries, that party can never apply to the court for an order dealing with the home, pensions or any other assets and could be stuck in a very difficult position.
If you are tempted to have a divorce but leave the assets where they lie, or to discuss finances at a later date, we would encourage you to take advice as it is far better to sort everything out and be able to move on, confident in the knowledge that things have been resolved once and for all. A clean break order might sound attractive but it is very important to understand what you would be entitled to in a divorce, so that if you do still wish to have a clean break, you do so with your eyes firmly open.
If you have divorced but never resolved your finances, we would encourage you to deal with this as soon as possible and in any event, we can help to guide you through this process and protect your position. Contact us to speak with one of our family law specialists.
T: 029 2034 2233