When a divorce is finalised, many people understandably feel that the legal process is over. However, while the marriage itself may have ended, there are often still important legal and practical matters to address. Some of these will need careful attention before the Final Order is made, while others may need to be reviewed in the weeks, months and years that follow.
It is also important to understand that divorce is final. Once the Final Order of Divorce is made, the marriage is legally dissolved and the parties’ status changes immediately. In all but very exceptional circumstances, that cannot be undone. However, whilst divorce is final in terms of marital status, it does not automatically bring all financial matters to an end. That distinction is a very important one.
Below, we outline some of the key legal considerations following a divorce, including financial claims, property, children and future planning.
Financial Claims
A Divorce is very final and will formally dissolve a marriage.
Although a Divorce application can be withdrawn at any stage before the Final Order of Divorce is made, the Divorce is concluded by the pronouncement of the Final Order. This legally ends the marriage and the parties’ legal status changes immediately to divorced or single. In practical terms, this cannot be reversed other than in extremely rare circumstances, such as major procedural error, fraud or lack of jurisdiction. Otherwise, the only way to reverse a divorce is for the parties to remarry.
However, the making of the Final Order of Divorce does not necessarily sever all financial links between the parties automatically.
Financial claims can still be made after the Final Order of Divorce if those claims remain live and have not been dismissed or otherwise resolved within a final Financial Order. There is no automatic time limit for bringing financial claims after divorce in England and Wales, and in some cases claims can potentially arise years later.
This is one of the reasons why it is so important to obtain legal advice at an early stage. If a couple divorce without a legally binding financial settlement recorded in a court-approved Financial Order, financial ties may remain open. A Financial Order containing a clean break clause is the only way to dismiss future claims and provide certainty that financial matters have been fully concluded.
Pensions require especially careful consideration. If no Financial Order was made at the time of the Divorce, or there was no clean break dismissing pension claims, it may still be possible for a former spouse to apply to the court for financial provision, including pension sharing. However, pursuing pension claims after the Final Order is usually more complex and can involve greater risk than resolving matters before the divorce is finalised. There may also be circumstances in which important spousal rights have already been lost, including, for example, widow’s benefits.
For that reason, whilst financial claims may still be capable of being pursued after divorce, it is generally preferable for them to be addressed before the Final Order is made wherever possible.
We would strongly recommend that anyone contemplating divorce, or approaching the stage where a divorce is about to be finalised, seeks legal advice about any financial claims they may wish to pursue.
The Family Home, Property and Other Assets
For many couples, the matrimonial home is one of the most significant assets to consider on divorce. Whether the property is to be sold, transferred into one person’s sole name or retained for a period of time, it is important to understand how the property is legally held and whether either party may have claims arising from their interest in it.
It is often sensible to obtain early independent legal advice concerning how property is held, particularly in relation to the family home. The dissolution of the marriage may affect a spouse’s equitable rights in respect of the property, and this should ideally be considered before the divorce is brought to a conclusion.
Other assets and liabilities should also be reviewed carefully. This may include savings, investments, business interests, loans, mortgages and joint bank accounts. Reaching an informal understanding is not always enough. Where agreement has been reached, it is usually advisable to ensure this is reflected in a formal Financial Order approved by the court.
Children and Ongoing Family Arrangements
Where children are involved, divorce does not bring parenting responsibilities to an end. Parents will still need to make decisions about living arrangements, schooling, holidays, financial support and the general welfare of their children.
In some cases, arrangements can be agreed amicably and continue to work well without formal intervention. In others, it may be necessary to take legal advice in order to resolve disputes or put more certain arrangements in place.
Child maintenance should also be considered carefully. Some parents are able to reach a voluntary agreement, while others may require additional support in putting suitable financial arrangements in place. What matters is that arrangements are workable, clear and focused on the needs of the child.
Future Planning and Reviewing Your Legal Affairs
Divorce should also be a prompt to review your wider legal and personal affairs.
It is important to make a Will following a Divorce. If a person has no Will, the rules of intestacy provide that a proportion of their estate may pass automatically to their spouse. If there is no longer a spouse because of the Divorce, the next person entitled under the intestacy rules may not be the person the individual would actually wish to benefit.
Equally, if a person already has a Will which contains gifts to their spouse, the Divorce does not invalidate the Will itself. Instead, the Will is generally administered on the basis that the former spouse died on the date the Final Divorce Order was made. This means gifts to the former spouse would fail, and the estate would pass in accordance with the remainder of the Will. That may not reflect the testator’s true wishes and could lead to partial intestacy or unintended beneficiaries.
For that reason, it is critical to make a new Will or review and update an existing Will as soon as possible after divorce.
It may also be prudent to consider making Lasting Powers of Attorney so that somebody appropriate is appointed to assist with Property and Financial Affairs if practical support is ever needed, and to make decisions relating to Health and Welfare should capacity be lost in future.
In addition, individuals should review and, where necessary, update nominated beneficiaries for life insurance policies, pensions and death in service benefits, insofar as those interests have not already been dealt with as part of the Divorce and Financial settlement.
The Importance of Early Advice
One of the clearest messages for anyone going through divorce is that legal advice should be obtained as early as possible.
Whilst some claims may remain capable of being pursued after the Final Order, divorce itself is final, and certain rights connected to spousal status may be lost once the marriage has legally ended. That is why financial matters, especially those involving pensions, income, capital and property rights, should ideally be considered well in advance of the Final Order wherever possible.
Early advice can help ensure that important claims are identified, risks are understood and appropriate steps are taken before rights are lost or positions become more complicated.
How DTM Legal Can Help
Every divorce is different, and the legal issues arising afterwards will depend on your personal, financial and family circumstances. Obtaining the right advice at the right time can make a significant difference, particularly where finances, property, pensions and future planning are concerned.
To contact a member of DTM Legal’s Family team for legal support, please email family@dtmlegal.com.
