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The importance of concluding your case

Posted on 22nd June 2023 in Family Law

Posted by

Aimee Aspinall

Associate & Solicitor
The importance of concluding your case

When you are divorcing there may be reasons why you would prefer not to fully conclude your case. However, it is important to be aware that not doing so could lead to further issues in the future.

If you obtain a Final Order but do not secure a Financial Order (either by Consent or as Ordered by the Court):

For some parties, the grant of Final Order may have psychological benefits, as it provides a sense of closure. It is however generally advisable for divorcing parties to delay applying for Final Order ending their marriage until financial matters have been resolved.

Grant of Final Order means that you are divorced and therefore you are free to remarry.

If the family home is owned by only one spouse or civil partner, the non-owner may have Home Rights registered securing their right of occupation. Once Final Order is granted, the non-owner ceases to be entitled to Home Rights.

Where there are pensions involved, grant of Final Order before a pension sharing order has taken effect can have disastrous consequences should the party with pension rights die. Until Final Order, parties legally remain spouses and therefore upon death become a widow/widower and entitled to receive such benefits under the pension scheme which can be significant. If Final Order is granted, the parties are no longer married and can therefore not be a widow/widower of their former spouse. Entitlement to those benefits on the death of a former spouse ends as soon as the marriage is ended. For these reasons, it is advisable that Final Order is delayed until after a pension sharing order has taken effect (if one is made) i.e., 28 days after approval of that order.

Final Order also affects inheritance under wills (and intestacy rules) between former spouses. If you are named as beneficiary or executor in a former spouse’s will, those provisions cease to have effect.

Final Order does not dismiss financial claims, which means a financial claim can be brought against either party long after you are divorced, even if you remarry. This is demonstrated by a case which made headlines in 2015.

Vince v Wyatt (2015)

In 2011, some 27 years after separation, and 8 years after divorce had been finalised Ms Wyatt made a claim against her ex-husband, Mr Vince, in a landmark case showing the importance of settling not only divorce matters but also financial matters too. During their marriage and part of their split both parties had limited income and assets, however, long after their split Mr Vince began a business venture which ended up very successful. His estimated worth is said to be £107million whilst Ms Wyatt’s financial circumstances remain very modest.

Ms Wyatt’s claim for a lump sum and periodical payments in the sum of £1.9million was appealed by her ex-husband which was successful. Ms Wyatt then appealed in the Supreme Court.

They came to settlement that Mr Vince was to pay Ms Wyatt the sum of £300,000 in full and final settlement of all her claims. This is in addition to the sum £325,000 Mr Vince had already paid in respect of Ms Wyatt’s costs. This case highlights the need for a Financial Order with a Clean Break to be dealt with at the time so that neither party can make future claims against the other. If this had happened Mr Vince’s wealth would have been protected. Likewise, if one party goes on to inherit, build business or acquire other assets these too would be untouchable should a Financial Order be in place.

If you obtain a Financial Order but not a Final Order:

You are not divorced and therefore cannot legally remarry.

The Financial Order which you have arranged will not be able to take effect until Final Order has been pronounced by the Court. Any assets or wealth gathered since your Financial Order has been agreed will need to be considered and the Order redrafted.

A Pension Sharing Order can only be implemented once Final Order has been granted. This should be applied for no earlier than 28 days after the financial order has been approved. 

Entitlement to inheritance under wills between spouses will continue until Final Order is granted.

If you do not have a Final Order nor a Financial Order:

You are not divorced and cannot remarry.

Either party can make a financial claim against the other even after separation. If assets are acquired by either party post-separation they are not automatically protected.

Your spouse’s credit score and other financial dealings can have an effect on your own financial standing.

You will need to make provision if you jointly own property or businesses.

Even after separation any children born during the marriage will need to be supported and maintained. This is true also of a child born after separation, that child will be presumed to be the Husband’s child until proved otherwise.

What are my next steps?

Whatever you are considering, it is important to seek legal advice so that you decide upon a way forward in an informed way. A Family Law solicitor will be able to guide you through your options and advise you about your next steps. Our team of specialist family lawyers offer a free initial consultation.

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