18 Dec 2023
18 Dec 2023
Understandably, being told that divorce is statistically taking longer is unpleasant enough, a subject explained about in our article Divorce and Alternative Dispute Resolution, it is then no surprise that for clients intending to divorce, they may not welcome the advice of delaying the application for their final divorce Order.
However, although this can be hard advice to give, there are many nuanced reasons why sometimes it is better to delay this process. After all, we want to ensure our clients are in the best position they can be to continue their next stage in life.
The “remarriage trap” is a phrase many have heard about but might be unsure of its meaning. Simply, this is when an individual obtains their divorce and then re-marries without having first obtained a Financial Consent Order, unaware of the risks involved. Once you remarry the financial claims you can make against your ex-spouse are limited only to claims against pensions.
Delaying the application for the final divorce Order also has implications on the parties’ pensions and this is vital to appreciate as often one of the most significant assets owned by divorcing couples, are their pensions. Pensions are complicated and can take different forms. However, there are some common characteristics. Whether it be an occupational pension or a self-invested personal pension (SIPPs) these pensions will often pay out to the pension holder’s spouse on their own death. A morbid but essential consideration to take into account when going through a divorce.
Likewise, some pensions may allow the Trustees of the pension to exercise their discretion to decide who is to benefit upon the death of the pension holder. While it is therefore wise to understand this as the surviving spouse going through the divorce, this consideration should also remind divorcing parties to check their own pensions and update any letters of wishes that the Trustees will refer to when exercising this discretion.
Arguably, the most essential reason for delay is making sure that, first, any financial agreement is made final and enforceable. This is achieved by obtaining a Financial Consent Order.
A Financial Consent Order reflects the agreement between the parties, but it is approved by the Court. The document will mean the final divorce Order can be obtained with the parties knowing that they can enforce their agreement should either party fail to uphold their responsibilities set out in the Order. The Order will also provide the greatest protection from an ex-spouse making any claims from the other, after the divorce is made final.
Financial Consent Orders require careful drafting and consideration because of their importance. Obtaining this Order should be the main goal for all concerned in the divorce not necessarily the final divorce Order itself.
Providing clients careful, early advice on the importance and the relevance of the vital issues that apply specifically to them, is therefore essential. Clients must also understand that there are many ways and means to achieve any financial agreement. We aim to ensure clients are steered through the complexities of negotiations or Court proceedings in the most pragmatic, flexible, timely and cost-efficient way possible, which means that when the time comes to finalise the divorce, they can move forward with security.
