It’s a common misconception in divorce proceedings that once the divorce process has been finalised, and the decree absolute obtained, that the financial matters between parties also conclude. This is not the case; a separate and final order of the court is required to determine and record the division of assets and liabilities, as well as dismissing all other claims, so there can be no future claims brought by an ex-spouse.
Without pursuing a final order on financial provision a person can remain vulnerable to claims being brought by their ex-spouse many years after divorce. Indeed in the 2015 Supreme Court case of Wyatt v Vince it was ruled that the ex-wife of a multimillionaire, who had made his fortune post-divorce, was able to claim a share of his assets some 22 years later.
While the court file had apparently been mislaid it was not clear what, if any, order was made at the time regarding the couple’s financial provision. Still, the Court held it had no reason to believe that Ms Wyatt’s claims should be dismissed. In awarding Ms Wyatt a substantial sum, the Supreme Court determined this was fair on the basis that she had held a significant role in raising and supporting the couple’s children.
To avoid this potential pitfall, it is highly recommended that divorcing couples finalise their financial order prior to applying for decree absolute. The order, if agreed, will be a Consent Order. Consent Orders can deal with assets such as income (like spousal or child maintenance); pensions; property; investments and debts.
If both parties respectively sign a Consent Order which divides their assets, liabilities and any future income, a court is generally unwilling to allow one party to renege on this. If the order is a final Consent Order, the only way to challenge such an order is to bring a fresh application to have it set aside; this requires an applicant to show misrepresentation, mistake or another ground to have the order annulled. Examples of justified reasons for challenging a Consent Order include:
- Non-disclosure of material facts when the order was drafted. If a party to proceedings does not accurately provide full and frank disclosure at the time the agreement was made/ negotiated.
- Fraud or misrepresentation. Where there is purposeful non-disclosure by a party in an attempt to mislead or deceive the other party into receiving less than they are entitled.
- Supervening events. Examples include where one party’s life style significantly changes or inheritance is received, usually within a very short period after the order was made.
- Undue influence was used when producing the Consent Order. Where there was oppression or coercion by a party when the Consent Order was agreed/negotiated (usually there will be significant inequality between the parties respective bargaining powers too).
If you are currently trying to navigate a divorce and would like legal advice on financial provision, please do not hesitate to contact a member of our Family Law team to speak with one of our legal experts. Call 0808 252 5231 or request a call back online.