Divorce: The Importance of a Financial Order
The recent Court of Appeal case of Briers v Briers  EWCA Civ 15 is yet another reminder of the importance of obtaining a Financial Order in or around the time of completing your divorce. The pronouncement of the Decree Absolute does not, by itself, dismiss the financial claims of an estranged spouse. They remain able to make claims against your income and assets pending the Court making a Financial Order (whether by agreement or otherwise).
The parties married in 1984 and separated in 2002 (18 year marriage). The Decree Absolute concluding their divorce was pronounced in 2005 but, crucially, no Orders were made in connection with their finances. Naively, the Husband still proceeded to pay the Wife £150,000 in 2006 and in 2007 transferred the former matrimonial home into her sole name. he believed that this was in full and final settlement of her financial claims in accordance with the agreement which they reached shortly after their separation.
Following the breakdown of her subsequent relationship, the Wife made an application to the Court for a Financial Remedy based upon the Husband’s assets at that time.
The Issues for the Court
The issues for the Court were:-
- What weight should be given to the agreement which the Husband alleged the parties had reached following their separation and pursuant to which he had acted in reliance and;
- What weight should be given to the Wife’s delay in making her application (i.e. the parties had been separated for 11 years and had been divorced for 8 years).
The Court of Appeal accepted the Wife’s argument that she should not be bound by the agreement purportedly entered into following the parties’ divorce. In particular, regard was had to the fact that the Husband had not provided a full financial disclosure; the Supreme Court having previously made it clear that this is an absolutely crucial part of making a post-separation agreement binding.
The Court of Appeal found that the delay in bringing a financial claim following the completion of a divorce is a major factor that the Court should take into account when dividing the matrimonial assets. Even a severe delay, however, does not prevent the Court from making a further award. The Wife was therefore awarded between 27% and 30% of the overall assets.
Plainly, the above would have been a very disappointing outcome for the Husband. This could have been avoided, however, if he had insisted the Wife enter into a Financial Order on the terms which they had purportedly agreed. This would have concluded the financial aspects of their separation and would have prevented the Wife from making any further claims.
Should you require any advice or assistance with your divorce or with regard to your financial position following your separation, please do not hesitate to contact Ian Butterworth through this firm’s Family Department on 01202 636223. Ian is based in this firm’s Bournemouth office and is a Resolution Accredited Specialist in complex matrimonial finance cases.
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