It isn’t always obvious, but when divorcing “delay” in resolving the finances of the marriage into a final court order, may create unexpected difficulties. Sometimes people divorce and think they will get round to “that bit” – but never do.
Time passes and former spouses move on with their lives, start a new family, and/or remarry to find that years later, their former spouse decides to make a financial claim against them in the Family Courts because their claim remains open. They are served with a court application asking for e.g. money, property or assets. An ex-spouse is entitled to make a claim at any time unless they are barred from doing so and the bar only applies in very limited circumstances.
Making a financial claim
When a financial claim commences, it can create financial and psychological uncertainty and feelings of unfairness and imbalance.
In Briers – v – Briers  EWCA Civ 15 , the Court of Appeal revisited the issue of delay in resolving the finances of marriage when divorcing. The Parties divorced in 2005 after a medium to long marriage, however at that time, the husband and wife did not conclude their financial claims against each other in a final court order sealed by the court. This left their claims open against each other.
The ex-wife then made a financial claim in 2013 but the ex-husband wanted to rely on a written agreement made in 2005 between them. The court did not agree with the husband. The husband then appealed as he thought that the Judge failed to have sufficient regard to her delay in starting her claim and that she did not provide cogent justification for the delay.
On 6 May 2015, HHJ Rogers again found that there was no agreement in 2005 and neither had a final court order been made before now. He also dismissed the husband’s appeal.
Notwithstanding this, the wife’s share of the assets was discounted because of her responsibility for delay.
What can you do?
Wherever possible aim for out of Court agreements to resolve financial claims using alternative forms of dispute resolution such as family lawyer-led roundtable meetings, negotiation, mediation, collaborative law and arbitration. There are of course court proceedings; when necessary.
Mediation, for example, consists of a series of discussions, where a trained mediator will help to reach an agreement between both parties. This is often the quickest and most affordable way to resolve your marital finances. It would be expected within mediation that both parties give to each other a clear picture of their financial position.
Family Mediation can:
- Reduce tension and hostility
- Save on costs & time of lengthy court battles
- Deal with full and frank financial disclosure of documentation
If arrangements have been reached about the money and property, then it is always the case that parties should have any agreement recorded in a court order known as a Consent Order.
If not, then the parties can resolve matters by making a claim to court, which should not be seen as an aggressive step, but as a means of focussed action to resolve matrimonial claims. Delay makes a difference!