Can I Apply for my Decree Absolute before I have a Financial Order?
25 July 2019
By Divorce Case Manager, Harry Low
If you are getting a divorce in England or Wales, it's important to note that the divorce itself doesn't sever financial ties between you and your spouse. For that, a separate Financial Order is needed.
If you apply for your Decree Absolute before you have your Financial Order, then ongoing contributions to the matrimonial pot won't be taken into consideration. This could mean that one person is left worse off as a result.
Why Should I Apply for My Financial Order before the Decree Absolute?
When applying to the Court for a divorce, it is important to remember that in England and Wales the divorce itself will only end the marriage, and will not deal with any matrimonial assets held from the marriage. Therefore, it's important that the matrimonial finances are dealt with separately, in order to sever any ongoing financial commitments between the couple.
This is done using a Financial Order, such as a Clean Break Order, and this is a separate application that must be made to the Court. But if the Decree Absolute is granted before a Financial Order has been sealed by the Courts, this could result in one person being left worse off.
Marriage introduces financial ties between couples, and in the event of divorce, these financial ties will need to be addressed by the Court. This is to ensure that each person's financial position is protected, especially if there is a discrepancy in income, savings and pensions.
The individual and joint assets of both people will need to be disclosed, including savings and property, for example. Claims can also be made for contributions that have been made during the marriage to pots such as pensions, savings, trust funds, investments or shares.
If the Decree Absolute is issued before a Financial Order, the marriage will have ended and contributions made to these pots will no long be considered as matrimonial. This can leave one person inadequately provided for.
For example, if one person has sacrificed working to raise the children, a workplace pension fund will have also been sacrificed. In this situation, a claim against their spouse's pension pot will be crucial to ensure they are financially supported during retirement.
Risk of Remaining Financially Tied
Without a Clean Break Order, the financial ties that exist between the couple will remain in place, potentially indefinitely. There is no time limit for making a claim, so it could be a matter of years before a claim is made against you by your spouse.
This can – and does – happen, so we would always recommend severing all financial ties properly by putting a Clean Break Order in place. In some cases, couples may choose to deal with finances informally at the same time as the divorce, or maybe there were no assets to speak of at the time, so it was simply left. This is not a good idea.
What's important to note is that unless the financial agreement has been approved and sealed by the Court, one person can still make a financial claim against the other in the future. This could happen after someone reflects on the settlement, deciding that this was not actually fair and that their ex should have made a greater contribution. Or it may be that one person comes into a significant amount of wealth after the divorce has been finalised. This could be in the form of inheritance or business success, for example. In this instance, their ex-spouse could decide to make a claim against this new found wealth, particularly if they are the one raising the children as a single parent.
Another scenario to consider is what happens if one spouse dies during the financial proceedings, before a settlement has been reached and sealed by the Courts. In this scenario, if the Decree Absolute has not been obtained, the surviving spouse could be entitled to the deceased's Estate as their widow/widower. The widow/widower may receive a settlement much greater than that achieved through a divorce settlement. This can be an incentive for them to delay the application for the Decree Absolute.
As with all divorce proceedings, each divorce petition and financial application will be unique to the marriage. Specific advice from a Divorce Solicitor should always be sought to ensure you are placed in the strongest position.