Experts from leading law firm Trethowans are emphasising the importance of dismissing financial remedy claims with a court order within divorce proceedings.
It has recently been suggested in other publications that a court order is not possible for some couples due to the perceived expense and/or their wish to proceed amicably. Trethowans emphasise that obtaining a court order detailing the agreement for the division of financial assets does not need to be expensive and it not litigious.
Amy Trench from Trethowans said that “many people believe obtaining a court order means that they need to litigate, when in reality most cases that achieve a court order do so by consent and do not involve either party stepping into a court room.”
Amy Trench explains “a financial remedies order can be submitted to the court for approval following a decree nisi dissolution in the divorce proceedings this details the parties’ respective financial claims and, also, prevents possible future claims where appropriate. This can be achieved in a conciliatory way with the order being submitted on a paper basis to the court for a judge to approve.”
This issue was brought to media attention in 2015 when the ex-wife of energy supplier Dave Vince proceeded with a claim against her husband despite it being more than 20 years since they divorced. It was emphasised widely then that simply getting a divorce does not dismiss financial claims and that divorcing couples should seek to dismiss their respective claims with a consent order within divorce proceedings.
The issue has received further media attention in light of the change of rules for stamp duty, which increased in April 2016 for buyers who already owned a property or part of a property. A person who wished to buy again but retain a stake in the marital home, in which the former partner and children remained, was penalised on stamp duty. The November Budget included a special measure to help this category of people by providing an exemption to the higher rate where a court order is in existence detailing the financial agreement. An additional reason why it is sensible to secure ensure a formal order is drawn up formerly and approved by the court so as to avoid potential large unintended tax liabilities.
Amy said that couples often believe that the decree absolute signals the end of any obligations arising from the marriage but this is not the case. The family team at Trethowans are all members of Resolution, which means they are committed to resolving cases amicably where possible. Amy emphasises “Getting a court order within a divorce does not need to be adversarial and it can be achieved amicably by both parties.”
Article written by Amy Trench