Sometimes there can be a nagging doubt that everything was sorted out just fine, but it may seem silly or a needless expense to ask an independent professional, especially if you paid for a service at the time.
You would expect that work done by a professional such as a solicitor would be done correctly, but sometimes professionals do what they were asked to do, not what might have been the best option.
Sometimes people do not ask the right questions or accept answers which are more ambiguous than they realised.
If you dealt with splitting up without professional help, then you may have ‘smashed it’ or ‘nailed it’ first time yourself when it came to getting your divorce done, but that will not always be the case. Simply getting something ‘done’ does not mean it has been done in the best way nor that the way it has been done sets things up for the optimal future. The appearance of completion – of it being ‘done’ may be false comfort. Sometimes it is worth paying attention to a nagging doubt and checking.
When would a solicitor look back to check for somebody after they have split up?
Family law solicitors most often review what was done when people got divorced either when there is no financial deal approved by the court or when a financial deal is looked at again.
What does a divorce petition do?
A divorce petition – sometimes called an ‘application for divorce’ – is the document that asks that the formalised legal relationship between a couple is dissolved/ended. That is the primary purpose of a divorce petition.
You could say to the petition ‘You only had one job!’ but over the years that has rarely been entirely accurate.
Apart from asking to end the marriage, what else does the divorce petition do?
Decades ago, the divorce petition would identify the children of the household – those who were or treated as ‘children of the family’ as part of a process to encourage parents to think about arrangements for their children. The Children Act 1989 was intended to bring about a big change in how the law and society should go about that process and children were removed from their parents’ divorce process and so – quite some years later – petitions stopped requiring that children were brought under the scrutiny of the judge when approving divorce arrangements. Instead of having to convince a judge that either the arrangements for the children were ‘satisfactory’ or ‘the best that can be devised’ they were left out of the process altogether and the divorce petition did not need to mention them.
Does a divorce petition have any other important role than just asking to end the marriage?
The second most important item in a divorce petition is preserving legal rights after divorce.
Apart from ending the legal state of marriage, what is also mentioned in the petition is whether the petitioner is asking the court to preserve their right to make financial claims relating to the marriage. When revisions to the process have been considered, experts in the field of matrimonial finance proceedings, who handle negotiations, reach agreements and get orders from the courts, often suggested that the process make preserving those rights the default so people cannot accidentally lose them, but it remained that rights were only preserved if somebody ‘applied’ for those rights before the marriage ended by divorce at the date of the Absolute, now Final Order.
Another suggestion made by practitioners, which was not followed was for the wording of the divorce petition to be changed so that it was clear and did not require legal knowledge to understand. Lawyers wanting Plain English – surely that is contrary to the nature of law? As it happens, The Plain English Campaign has worked with lawyers and government agencies sharing the aim that accuracy of language and clarity are both important. When people are expected to engage in legal processes without any professional assistance, clarity is particularly important. The important step of ending a marriage remains an area where the people need information and clarity, especially if they are trying to do it themselves.
The box needing a positive response was ‘Do you want to make a claim for financial provision?’
What is ‘making a claim for financial provision’?
Making a ‘claim’ for financial provision is not what people would expect. Normally people ‘claim’ something they do not already have – if an insured event happens, such as a water leak or car accident, they make a claim on their own insurance or they might make a claim for a legal wrong done to them or for some right that has been given to them such as state benefits or a bursary/grant.
‘Where there’s blame there’s a claim!’ is not actually true as a matter of social interaction and law, but it was a memorable advertising slogan to encourage people to seek compensation – often with the gossamer-thin level of ‘blame’ that accompanies claims for a penalty in front of a ‘homer’ referee!
In the case of ‘financial provision’ what the phrase means is preserving existing rights, not seeking them. It only means ‘claiming’ in the sense of extending the duration they can exist beyond the marriage itself, which as resolving financial arrangements is NOT a precondition for a divorce to be granted should logically be the default, but is not.
How can I tell if I preserved my rights?
The only way to be sure is if there is a document lodged at the court – either the petition/application for divorce OR an actual Form A which in the case of people who have preserved their rights in the petition activates that claim. Most people would remember if there had been a finance case started, but sometimes that would be many years earlier and if nothing resulted from that – and often people abandoned the process without asking for further court dates to conclude matters – then it is possible that in rare cases there was an application that has been forgotten.
What is or was a Form A?
A Form A was making a claim of matrimonial finance rights and for a petitioner the form was used to ask the court to set in motion the process of the court setting a timetable so a decision could be made about who should have what. In the case of a Respondent, as they did not get asked if they wanted their rights preserved in the petition, their only way to seek their rights was to issue a Form A, which again was to put in hand a court timetable for those rights to be considered.
What is ‘the remarriage trap’?
Sorting out finances is not a mandatory step in getting divorced and so people can apply for Decree Absolute/Final Order whether or not they have agreed about the finances. After that, they can remarry.
If somebody has not asked the court to preserve their rights after divorce, either by claiming them in the petition or filing a Form A BEFORE they remarry, then they lose the right to ask the court to sort out their financial arrangements. The other person may still be able to ask the court to sort things out, but they themselves have lost the right to apply due to remarriage.
Who is most at risk?
Naturally, the Respondent has a greater risk of losing their rights – in the divorce they only had one form to complete – the Acknowledgment of Service and that did not ask them if they wanted to preserve their right to have the court decide about their rights.
We agreed between ourselves to keep what we each had – why did I need to make a claim?
Often people splitting up would not investigate the financial situation and if they felt able to ‘get by’ without sharing what they had between them, would informally agree that they would not be ‘making a claim’. Ticking that box on the petition would not be breaching that arrangement and indeed even to have a ‘clean break’ walk-away deal needed the court to have the power to approve it, but the way it looks to a non-lawyer, it was understandable that ticking the box looked like a betrayal and many people did not tick the box. The words used and the actual meaning were unclear.
Those people who did understand but thought it confrontational to say they were asking the court for financial provision are also at risk. Family law solicitors frequently needed to explain to Respondents (and indeed their own clients) that ticking the box preserved rights and was not starting off the court process. The wording was, as mentioned, misleading and often led to anger from people who thought that the petitioner of the lawyer was being underhand. Even when the solicitor tried to make the real position clear, petitioners who were sensitive about upsetting the respondent would often ask that the box was left unticked. Providing the solicitor explained that the divorcing client should not remarry without preserving their rights, there was nothing improper or negligent about following such a direction, but it is probable that many petitioners remarried without going back to their divorce lawyer to check for possible problems.
What can be done now?
If the people who divorced have not remarried, they still have the right to ask the court to consider the finances.
If a person remarried having ticked the box preserving their rights, they too still have the right to ask to have the finances formally resolved in a court process.
If a person has remarried without having preserved their rights at the time of divorce, then their rights are very limited.
The rules and law about pension sharing are beyond the scope of this guidance and anybody wanting to know about that should speak to an expert.
Can a court order be varied?
If you have a financial order then in some circumstances it can be varied. Discovering discrepancies in what was put to the court at the time an order was sought is often not enough to have the case re-opened, but that is a complex area of law and worth discussing with an expert.
If an order has not been fully implemented, which can be the case even years after it was made, then it may be possible to change what was set out.
The court does not ‘police’ its own orders and so any non-compliance or justified reason to want to change either a detail or an aspect that is no longer viable requires an application, particularly if discussions have not led to agreement. Sometimes that is possible and sometimes a court will struggle to change what has been set out. Again that is something that is fact-specific and you need to be able to produce evidence to back up what was expected when the order was made and the circumstances as they now are.
Changing what was expected can take many routes, even if ordered and it needs a legal expert to advise on whether any particular provision can properly be changed. Saying that, because the court does not act spontaneously and people are often at liberty to vary arrangements without troubling the court, more things are possible than are within the power of the court to actually order, so it is often worth discussing proposed changes.