Should I seek Legal Advice in My Divorce?
In April 2022, divorce law in the UK changed to a 'no fault' basis. Amongst many other things, one of the practical changes to come from this is that there is no longer a requirement for the applicant in the divorce to provide a statement to explain the 'fault' of the other party and the reasons why the marriage has irretrievably broken down. The option for the respondent to defend the divorce has also been removed.
As the process has now been simplified, people are increasingly dealing with their divorce without the assistance of lawyers. Where parties are confident to deal with the process themselves, it is perfectly understandable that they do so.
However, as many people are now bypassing legal advice in relation to divorce, the matrimonial finances are being overlooked. Many people believe that where a divorce has been finalised by way of Decree Absolute or more recently, a Final Order, all ties to the other party are severed. This is NOT the case. The divorce process acts to formally end the legal contract created by the marriage ceremony, it does not serve to dismiss any financial claims that have been created by virtue of marriage.
If the financial claims between the parties have not been concluded, either party could make a claim against the other at any time in the future (up until remarriage of the party intending to make a claim) for financial provision.
Often, people feel that they do not want to spend time and money to deal with the financial element of the divorce where there are no significant assets, but it is important to note that any future claim could be based on, or include, the assets at the time of the application and not at the time of divorce. This means that either party could win the lottery 20 years after their divorce and unless the financial ties have been severed, the other party could pursue a financial claim.
The way to protect yourself against a financial claim after a divorce and to sever financial ties created by marriage is by way of a 'Clean Break order'. A Clean Break Order can be by consent and if there are no, or limited, financial resources at the time of divorce, agreement may easily be achieved. Once the terms have been agreed, a lawyer can then draft the order and submit to the Court for approval. If an agreement cannot be reached, it may be sensible to make an application to Court to resolve matters, but this is generally a last resort.
A sealed order with a clean break clause will officially sever financial ties between the parties and neither can make any future claims.
There are of course some exceptional situations where a clean break is not appropriate, but it is prudent to seek advice on this at an early stage.
At Band Hatton Button, our lawyers are all members of Resolution - First for Family Law and will help you resolve matters in a conciliatory way. We also have an Accredited Family Mediator who can assist with all types of Family Mediation.