The Decree Absolute only dissolves the marriage. Just because you have closed the door on your marriage it does not mean you have closed the door to your finances.
Severing the matrimonial ties does not prevent either party from making any future financial claims against one another. If you do need to consider the division of the matrimonial assets such as income, property, capital assets, maintenance, debt provisions and pensions. You can try to resolve the finances by attending mediation or initiating discussions with your former spouse via your solicitor. It is also important to ensure that not only do you aim to achieve a fair settlement but to also ensure that you protect your future assets by obtaining a Consent Order.
A Consent Order is a formal financial agreement which sets out the parties wishes as to how the income, capital assets and pensions are to be divided. Once an agreement has been reached between the parties, your solicitor will draft the Consent Order embodying the terms of the agreement. The Consent Order will also have a Clean Break clause. Once the terms of the agreement have been fulfilled (i.e. a transfer of a property or a payment of a lump sum) the Clean Break will be triggered which will prevent the parties to the marriage from making future claims against one another’s income and assets. Each party will be required to sign the Consent Order which will be submitted to the Court where the Judge will make the Consent Order legally binding.
In cases where parties to a marriage do not have any assets. It is essential to obtain a Clean Break Consent Order. You may think that a Clean Break Consent Order is not required because you trust the other party not to make any future claims. However, there is always a risk that the parties financial circumstances may change in the future for example; you may receive an inheritance or even win the lottery.
Section 28 (3) of the Matrimonial Causes Act 1973 confirms the only time where this may not apply is when the respondent in the divorce proceedings decides to remarry prior to making a financial claim in relation to the previous marriage. The remarriage will bar you from applying for periodical payments, a lump sum, pension attachment or a property adjustment order in their favour from their previous marriage.
Below is a perfect example as to why you should settle your finances before you decide to remarry.
In the case of E v. E  1 FLR 220 wife had agreed to pay her husband a lump sum of £250,000. The Consent Order would become effective from the date of it being approved by the Court. The Husband remarried in Bali and his solicitors filed his Form A three days later. The Court held that the Consent Order had not been approved therefore, his previous wife did not have to pay him the lump sum.
Not obtaining a Consent Order leaves the parties claims against each other’s finances open. For example, if you win the lottery years after finalizing the divorce. The other party to the marriage can make a financial claim against your winnings.
We can look at recent events as an example:
It was reported that Ade Goodchild a former metal factory worker from Hereford won £71 million by playing the EuroMillions Lottery. Twice divorced Ade could be at risk of both of his ex-wives claiming against his winnings. If his ex-wives were not the respondent in the divorce proceedings and have not remarried, he has left himself open for them to apply for a financial order against his winnings.
To avoid undue stress and unwanted legal costs in future. We recommend that you deal with the finances at the same time as the divorce proceedings as you can rest assure that you are protecting your current and future assets.
Written by Sarah Afzal Neal | Family Lawyer
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