Can I go for a second bite of the (financial) cherry after divorce?
If no formal financial Order is made by the Court at the conclusion of a divorce then the future consequences can be substantial. A common misconception is that the divorce alone brings financial claims to an end, this is simply not true.
The Recent Briers v Briers case
You may recall seeing the case of Mr and Mrs Briers in recent press articles, whereby the Wife of the Millionaire Mr Briers, won a financial claim in region of £2.7 million some 10 years after the parties divorced. Mr Briers argued that his ex Wife should not be entitled to these monies as they were accrued post separation as a result of his hard work building up his business. Mr Briers also contended that the parties had agreed a division of the marital assets when they divorced, following a joint meeting with a Solicitor and that the agreement had been one of a clean break. He had paid his Wife £150,000 to pay off the mortgage of the £700,000 marital home, a £10,000 salary a year plus child maintenance, and he kept the business which was previously in joint names. The Wife argued that she would never have agreed to a final settlement without an exchange of full and frank financial disclosure. From a legal point of view, the fact that the parties had a joint meeting and not separate meetings with separate legal advisers is also questionable.
Despite the Husband appealing the Court’s decision, his appeal was rejected as it was found that no formal agreement had been reached back in 2005 and even though there had been a significant delay in the Wife bringing the claim, the Wife was entitled to a share of the assets at the value they were on the day of the court hearing. It was reiterated that each case is dependent on its facts.
So how could this have been avoided?
This could have all been avoided had both parties taken independent legal advice and the agreement reached in 2005 been recorded in a financial Consent Order and approved by the Court. The Court would have been provided with basic financial disclosure and would have only approved the Order if it was deemed fair and reasonable in the circumstances and at the time of the submission. The Consent Order could have included a clean break clause which would have prevented the parties from bringing any future claims.
It is therefore paramount that the financial aspects of the separation are discussed at the outset of any separation and the relevant advice and assistance should be taken. Please contact our experts to arrange an initial appointment to discuss your specific matter further.