It is often a common misconception that once a divorce is made final (previously known as absolute), this also means that any financial arrangements you and your former spouse have made together is also final and binding. This is not the case, unless the arrangements you have reached are embodied into an order made by the court.
Difference between the Divorce Application and Resolving the Finances
A good way to visualise this, is that the process for resolving the finances runs alongside or within the divorce application process, and it can continue to run even once the divorce itself has been made final.
It is common for the divorce not to be made final until the finances are resolved, but this depends on the circumstances of each case, and you should be guided by your legal advisor as to the best approach for your individual circumstances.
The divorce process can generally be said to be quite straight forward. The new non-fault divorce process means that it is no longer possible to defend a divorce. It is, therefore, usually the division of finances which take the time to resolve and which can sometimes create conflict between the parties.
Do I need a Court Order to Resolve the Finances
Yes, you do. Without a court order, the agreement you have reached with your spouse/former spouse is not binding. This means that it is not enforceable.
If you and your spouse/former spouse are able to reach an agreement directly, or through mediation or solicitor negotiation on how you would like to divide the matrimonial assets, this agreement should then be put into the body of a consent order which is then sent to the court for the court’s approval. If approved, this will be sealed by the court and at this point the agreement will then become binding and financial claims are brought to an end.
In situations where parties are unable to agree on how to divide matrimonial assets, it is sometimes necessary to apply to the court to ensure that both parties co-operate with the process and if an agreement is still unable to be reached, the court will make a decision on how the assets are to be divided and will make an order imposing their decision on the parties. This order will also be binding and enforceable and will bring financial claims to an end.
If you do not have a consent order, or an order imposed by the court even after the divorce is made final financial claims will remain open. This could mean, for example, if you were to win the lottery or your business becomes extremely successful your former spouse (even years after parting) could seek to claim an interest in this. Hopefully your legal advisor will find scope to argue this but there is likely to be a large cost element to you in opposing the dispute.
Therefore, if you do not want to leave yourself exposed, ensure that the financial claims are brought to an end by way of a consent order, or by an order imposed by the court.
Should you need any assistance with divorce or financial arrangements, please do not hesitate to contact us by phone on 01252 733 770 or e-mail us at firstname.lastname@example.org for an initial, free 30-minute consultation.