SIGN NOW OR FOREVER HOLD YOUR PEACE (WHEN YOUR EX-SPOUSE COMES CALLING)
21st October 2015 | Alisha Francis
During a divorce or civil partnership dissolution there are two ways to put in order what happens to the marital assets, including the matrimonial home such as your house, car and holiday home, to savings, shares and even as far as the family dog!
The first, and suggested, option is that the two parties amicably agree in writing to who ends up with what and whom whereby the agreement, known as a Consent Order, is sent in to the Court where the District Judge is asked to approve it after the Decree Nisi.
In order to do so, all matters need to be agreed, and if one party does not agree then subsequently there will be no consent order.
The second, and less favourable, option is where the parties cannot come to any form of agreement, meaning that someone else must make the decision, taking in to account all of the circumstances in the case. This would be via the courts system, and a Judge would give the parties a decision after a Financial Dispute Resolution hearing is heard in court, more commonly known as an FDR.
A consent order is a financial contract voluntarily and jointly agreed by those planning on divorcing which consequently settles all financial obligations arising from their marriage and the subsequent breakdown as such. A consent order covers the financial aspects of the marriage. It usually describes what is to happen to the main assets of the marriage and also covers child and spousal maintenance. For example, a consent order might specify what will happen to the marital home: it could be sold and the proceeds divided, or it could be transferred into one person’s name, subject to a parties needs.
In respect of a non-contested court order, it is not always necessary for applicant to attend court, particularly if the Judge has enough information to make an informed judgment and confirm that the terms of the agreement are fair.
Applicants would normally only be required to attend court if the Judge wished to raise further questions, or if he or she wants to clarify some points with the divorcing couple before agreeing to the order.
The Judge will use Section 25 of the Matrimonial Causes Act 1973 when deciding the needs of the parties, in relation to matters such as income, the primary carer to any children of the family and other factors such and whether any spousal maintenance needs to be provided to one party dependant on their current circumstances.
Some people are under the impression that rights to claim either property or maintenance weakens over time, however there is no curb period.
Therefore Consent Orders are highly advised in some case scenarios as, spousal obligations aside, this can allow couples to gain what is known as a ‘clean break’ after the breakdown of a marriage and as such is a legally binding financial document.
Where no such order is made at the point of divorce, recent case law has concluded that in some case scenarios an ex-spouse can bring a claim years, and even decades, after the breakdown of a marriage.
As such, the above is of both legal and moral discussion in the ongoing case of Vince v Wyatt, most recently heard in the Supreme Court.
The wife of ex husband Dale Vince, a now multi-millionaire following his success of a wind turbine energy company, has made a financial claim of £1.9 million against him, although they were legally divorced all the way back in 1992, now 23 years since that point.
Subsequently this was rejected by the Court of Appeal however, this judgment was set aside by the Supreme Court in March of this year who have ruled that there is no express time limit in law for claims for financial provision from ex spouses, and the claim could progress in the High Court.
This was reasoned by Lord Wilson who has said the court must have regard “to the contribution of each party to the welfare of the family, including by looking after the home or caring for the family”, but the claim only had a prospect of “comparatively modest success” with a £1.9 million payout “out of the question”.
The court pointed out that ‘it is a dangerous fallacy…that the current law always requires rich men to meet the reasonable needs of their ex-wives’, with mention of the preceding case of North v North [2007], where he ‘is not an insurer against all hazards’, meaning that to sustain a case of need many years after separation or divorce, she must show not only a need but that it has been generated by her relationship with husband.
As expected, this decision has brought about much discussion relating to the rights of ex spouses as the ruling shows that there is no time limit for ex-spouses to apply to a court for a financial settlement following divorce – regardless of how weak such a claim may be.
This differs from other claims, including breach of contract and personal injury, where time limits are imposed on any such claims. The judgment is also a well timed reminder that any couples who want protection from such claims upon divorce, should obtain an order from the court at the time of the divorce, in which they both agree that there will be no further financial claims subsequent to it.
The debate is mainly divided between two camps; the ‘it’s a result for the feminists out there who believe that divorced women with children finally hold some form of legal value’.
This view does seem to miss the point as women are valued for that role in applications for financial provision upon a divorce. It must be remembered that London is not considered the divorce capital of the world for nothing!
The second view is that judges have gone insane as ex spouses are now ‘clinging on to the coattails’ of successful ex’s.
Both seem to miss the point of the judgment. The Supreme Court has not given Ms Wyatt a penny (as of yet). It has simply given her the platform of having her case heard.
It was decided that the court cannot strike out a case for financial provision on divorce without considering all of the evidence, and shown under the Matrimonial Causes Act 1973, Section 25 criteria, even if it has no real prospect of success, unless it is an application which is bad in law.
Ultimately the decision confirms what lawyers already know: that there is no statutory limit for bringing an application for financial provision upon divorce. It is a case that clients who decide not to pursue financial resolution upon divorce need to know about.
A Consent Order is therefore the logical explanation, that is the only way to guarantee that, if one of them goes on to make a fortune, they get to keep it without the need to look over their shoulder.
If you have any queries regarding Consent Orders or wish to book a consultation to discuss matters, please feel free to call us on 01277 210021 or fax us on 01277 262801 where we will be more than happy to arrange an appointment to suit your needs as appropriate.
Alternatively, you can email us directly at [email protected].
