Financial Remedies - is a Financial Order necessary?
1. Given the rising cost of legal services and the lack of legal aid, the newly divorced may consider it unnecessary to obtain a Financial Order – “why bother?” they may say or “it’s too complicated” or “it’s too expensive” or routinely “we’ve already agreed”. The truth of the matter is that none of these are valid reasons to proceed without a Financial Order – one remains legally financially committed for legal eternity! What could be worse than being financially connected to one’s ex spouse forever?
2. In the absence of a Financial Order – there is no “Clean Break” as only the court can grant a “Clean Break”. This means that a former spouse can seek financial relief many years later – even two decades later!
3. It is foolhardy to ignore a Financial Order – having done the harder bit – which is the Divorce itself. The Financial Order is absolutely crucial as the absence of the same can have a serious and deleterious impact in the future.
The legal door is forever open for a financial claim:
4. Without a Financial Order either party may issue a claim at any point in the future as the Matrimonial Causes Act 1973 does not have a time limit. Either party may make a claim for the following whether obtained before, during or after the marriage:
a. Real Estate
b. Cash savings
c. Investments/Stocks
d. Pensions
e. Inheritance
f. Earnings
g. Business income
h. Lottery winnings
i. Chattels – read jewellery paintings antiques etc
Informal agreements – not usually recognised or can be resiled upon:
5. If an agreement is reached between the parties BUT it is not formalised then it is not binding. Even postnuptial agreements drafted by lawyers are not automatically binding – they represent one factor the court will consider in it’s
decision-making exercise. Therefore whatever the parties agree – that agreement needs to be cast into a legally binding/enforceable contract.
6. The main problem with informal agreements is the fact that their lack of enforceability means either party can apply to seek a remedy from the court – parties circumstances may change.
Pensions:
7. Life expectancy is at an all-time high – but the majority of divorcees give little thought to their older age provision. This can have a disastrous impact in later life where one’s means and ability to earn has reduced. One of the key advantages of obtaining a Financial Order from the court is that the Order will enable a “pension share”. It is not possible to share a spouse’s pension without an order.
8. Further it is not so uncommon for a spouse to hide or limit their pension disclosure and this results in one party being unaware of how large their ex-partner’s pension pot is. There is also a risk that one or more pension pots may become “lost” especially when a person has often changed jobs or moved up the career ladder. The court process will ensure through clear directions that all the information is disclosed – hiding assets can lead to a finding of contempt of court.
9. It is often overlooked that an essential element of the court process is to trigger disclosure – without the backdrop of court proceedings there can be little motivation to be fully transparent – especially when no one is aware of a pension pot sitting with an old employer.
Inheritance:
10. In the absence of a binding Financial Order a former spouse can claim against their deceased spouse’s estate. This will be an unwelcome infringement on the rights of the heirs and potential future spouse/partner. The only method to prevent this situation from ever arising is to obtain a Financial Order.
Lack of a “Clean Break”
11. This point cannot be overemphasised – no binding Financial Order means there is no clean break – the parties will remain financially connected in perpetuity. The “Clean Break” Order ends financial ties once and for all – but this will need to be endorsed and approved by the court. A full clean break would prevent any future claims of any variety.
Key cases:
12. Wyatt v Vince [2015 UKSC 14] – in this Supreme Court decision a former wife made a financial claim 18 years after the parties had divorced. The ex-husband had become extraordinarily wealthy after the divorce. The Supreme Court held that there is no time limit on issuing a financial claim under the Matrimonial Causes Act 1973, and that divorce or decree absolute does not extinguish all financial claims.
13. Briers v Briers [2017 EWCA Civ 15] – a former wife issued a financial claim against the ex-husband many years after the divorce. The Family Court emphasised that without a formal financial court order the application would be open for judicial consideration in the usual way. In short – the passage of time does not impede the application for a financial remedy. It is important to note that in this case the Husband had acted on an informal agreement and completed an asset transfer and made various payments. The court held that this agreement is not sufficient as there had been inadequate disclosure at the material time and therefore the wife’s application for a financial remedy can proceed.
Get a legally enforceable agreement!
14. An agreement drafted by a lawyer [solicitor/barrister] is not automatically binding – especially when there has been non-disclosure. Divorcees often mistakenly believe that an “agreement” drafted by a lawyer has fully validity – it is not so straightforward and a non/poor disclosure vitiates that agreement.
15. Essentially there are two ways to get a fully enforceable Financial Order:
a. Obtain judicial approval of a Consent Order [I have a separate article on how a Consent Order can be procured].
b. Commence Financial Remedy proceedings
16. Whatever a party chooses to do – they should be strongly urged to take one of the above steps – simply doing nothing can be ruinous in the future.
Aysha Miah
31.10.2025