Divorce: don’t leave it to chance

Posted 23/09/2015

An increasing number of people these days are doing their own divorce, often using online packages, with little or no legal advice. Often people think that if  they have few assets, or have agreed how these should be divided, they do not need to do anything more beyond legally ending their marriage. This is wrong and all they may be doing is storing up trouble for themselves in the future.

Sometimes people agree that where there is little or no equity in the jointly owned family home that (typically) the ex-wife and children should remain living there, the ex-wife continuing to pay the mortgage, but nothing is done about altering who owns the property, and transferring to the ex-wife’s sole name. The ex husband still has an interest in the property, which he can claim at a later date. His agreement will be needed as and when the property is sold. Even worse if as in this example, the ex wife died before her ex-husband, her share of the property would automatically pass to her him unless she had “severed” the joint tenancy. Even once the tenancy has been “severed”  he may be entitled to half of the property.

Take another situation, a couple on divorce, may sell the family home, divide the proceeds and any savings in a way they think fair, and works for them in their circumstances, but do not document the agreement in a Court Order, then in the future a party who has not re-married can re-visit the agreement. Perhaps either party has built up further assets in the meantime. Perhaps the husband has a business, which during the marriage had little value, but over the years has flourished, an ex wife might seek to make a claim on that.

Neither of these are uncommon situations. In both cases, if the parties had documented the agreement in a consent order, made at the time of the divorce proceedings, the terms of the agreement would be binding on the parties, and they both would know where they stand in the future.

Any agreement that neither party can make any future claims against the other, a “clean break”, needs to be set out in a Court Order to be binding. More often that not, these orders are made by agreement (and why they are called  “Consent Orders”), and ratified by a Judge during the divorce process.

If in doubt about what you have agreed and how this should be documented, take legal advice. Everyone is conscious about the cost of a divorce, but taking legal advice on and having any agreement documented in a Consent Order, will always be money well spent in the future.

If you have separated and not resolved the financial aspects of your divorce, remember remarriage will impact on what claims you can make.

For individual advice, contact Ashtons Legal to book your free one-hour initial meeting.