The importance of a Financial Court Order and the 'Re-marriage Trap'
We have previously touched on this matter before, but it is such an important fact of English matrimonial law, that a reminder will never go amiss.
As family solicitors, dealing with your divorce, we will always advise you of the importance of:-
- resolving your matrimonial finances; AND
- having that financial agreement incorporated into a court order
Of course, the reasons why we advise you to resolve your finances speak for themselves. You remain financially bound to each other if you still jointly own property or other assets, or still have joint bank accounts or debts. You may have a claim against an asset owned by, or income received, by your spouse. If you have an entitlement then of course you should pursue it.
But, why should that financial agreement be incorporated into a court order?
Well, there are numerous reasons why that agreement must be incorporated into a court order and approved by the court.
- Firstly, if there is a Pension Sharing Order, the pension company can only deal with the pension share if it is incorporated into a court order.
- Secondly, only if the agreement is incorporated into a court order can any part of the agreement be enforced. So, if for example you are waiting for the family home to be sold but your ex-spouse is refusing to place it on the market, the court order will allow you to make an application to the court to enforce that part of the order.
- Thirdly, we will draft the order so that it is in “full and final satisfaction of all claims arising in life or in death”. This means that save for some exceptions, neither spouse may make a financial claim against the other in the future.
- Finally, because of the “re-marriage trap”. If you are the respondent in divorce proceedings and there is no financial agreement or there is an agreement but it is not incorporated into an approved court order, then you are barred from making a financial claim, would not be able to enforce an agreement and would not be able to make a pension sharing agreement/claim.
The courts were asked to look at this very issue in E v E [2008]. The ex- husband and wife had reached an agreement that the wife would pay to the husband a lump sum of £250,000. The husband took a holiday to Bali where he re-married his new partner. Several days later the draft court order for the financial resolution in the first marriage (the lump sum of £250,000) was sent to the court. The court refused to make the Order as the husband did not have a valid financial application before the court and, as he had now remarried, was barred from doing so.
The resolution of financial matters is complex, both in law and practice. At Lawson-West Solicitors you will only be advised by a fully qualified solicitor who will have years of experience in the resolution of family matters. Contact Us, we want to hear from you.
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