Can my spouse or civil partner make a financial claim after divorce?
It is usual practice when going through a divorce or dissolution that the financial aspects of your separation are dealt with. This could be, for example, who gets the house or division of any pension credit. In some cases there may be little or no assets or income to be distributed between you. In either of those cases, both spouses and civil partners have claims against the other for capital or income. It is not until those claims are dismissed by the Court that you are free to walk away in the knowledge that your spouse or civil partner cannot make a claim against you in the future. A common misconception is that decree absolute or final order dissolves your marriage or civil partnership and also dismisses your financial claims.
The only way of ensuring the financial claims are dismissed is by obtaining a Court Order. This can be done either during the divorce or dissolution proceedings or after you have obtained decree absolute or final order providing that you have not remarried. The Court Order will usually provide for dismissal of your respective income and capital claims against the other, and can include dismissal of claims on your estate in the event of your death. What this does is protect your future income and capital assets by severing the financial commitment between the parties. This is called a “Clean Break” Order.
It is usually in cases where there are no assets of the marriage when people are reluctant to enter into a Clean Break Order. Often, this is because there is no current dispute between the parties about finances or they trust each other not to make a claim in the future.
The danger of not having a Clean Break Order is that you are at risk of potential claims being made against you in the future by your spouse or civil partner. By that time, you may have, for example, inherited substantial sums of money, bought a house or worked your way up the career ladder and be earning a substantial salary. Your spouse or civil partner would legally be entitled to claim against your assets and income and this could have significant financial consequences for you or your family. There have been cases where claims have been made years after the divorce or dissolution and, despite the delay, the person making the claim has been successful in claiming substantial sums of money. The Court in those cases was clear that delay is not a bar to bringing a claim.
Our advice is to always deal with financial matters at the same time as divorce. It is usually possible to resolve financial matters without the need to apply to the court. If an agreement can be reached this can be incorporated into a carefully drafted Consent Order and sent to the court for approval.
If you would like to discuss your circumstances with us, please get in contact with a member of our family team on 01202 636223.