A nasty sting in the tail
February 27, 2008 1 comment
Not completing your paperwork may be the most expensive mistake you make
Going through a divorce is never an enjoyable experience. Both sides endure heartbreak, upset and emotional trauma and it may be tempting to bury your head in the sand, ignore the disputes over money and leave the whole process to the lawyers. But if you come to remarry and you haven’t been diligent with your paperwork, you may discover that being an ostrich has been a costly mistake.
Excuse me? How can that happen, doesn’t everyone get a settlement? You would think so, but there is a nasty little technicality in the law of which I suspect most people are totally unaware.
The often long and drawn-out process of receiving a financial settlement begins with a simple, procedural matter. You complete ‘Form A’ and lodge it immediately with the court with an associated fee. If you fail to do this before you remarry, you will not be able to make a financial claim against your former spouse – ever.
About a year ago, one of my solicitors rushed into the office in a panic to tell me that one of our clients was getting remarried the following week. He had been divorced by his first wife, but as yet there was no financial settlement between them. She was very wealthy. All the assets were up for discussion between the parties and there was going to be a big payout to him by the wife. The client, not wishing to be seen as a gold digger – particularly as he had an affair with another woman – had expressly refused us permission to issue a financial application (Form A). He instructed us that every attempt should be made to resolve matters amicably. Negotiations were still ongoing between the couple.
We have a clause in our retainer letter, stating that if a client intends to remarry they must tell us beforehand, because it can affect the client’s entitlement to a settlement. The client had decided on a whim to remarry and called the office, at the same time as my solicitor could hear his prospective wife in the background animatedly discussing their honeymoon oblivious to any repercussions.
My young solicitor was thankful he had remembered to tell us at all and so was I, thus protecting our indemnity insurance policy and his happy honeymoon!
My client was the “Respondent” in the divorce meaning that his wife (the Petitioner) was divorcing him. Because he was the Respondent, all he had to do to obtain a divorce was complete an “Acknowledgement of Service”, confirming receipt of the petition and various other matters.
As it turned out, the wife had guessed that her husband was intending to remarry. She had calculated that his girlfriend would want to get him married as quickly as she could. Knowing this, and having been advised he had not issued a financial application himself, she hoped he would fall into the waiting ‘elephant trap’ and be unable to make his claim against her. She was playing a waiting game and thus would pay him nothing. Her plan failed.
Instead we rallied into action and quickly issued his “Form A”, seeking a lump sum order against his former wife. My client remarried as planned the following week and eventually his case settled. He was still able to go to court after the remarriage and seek his settlement. What saved him was issuing his application before re-marriage.
Had he not informed us of his forthcoming wedding he would not have been so lucky. And the financial contribution he made to his 20-year marriage would have gone unrecognised.
Not every case ends in this way. John Bolch refers to the case of E-v-E of 10 October 2006, before Mr. Justice Singer, where a husband who was to receive an agreed lump sum from his wife was unable to do so, because his Form A was lodged with the court after his remarriage. The Court found that under Section 28(3) of the Matrimonial Causes Act 1973 the Court had no jurisdiction to award the lump sum after the husband had remarried, even though he and his former wife had already reached agreement.
It is not always so clear cut. A Petitioner who remarries without issuing a Form A on could be protected by the contents of the divorce petition which makes reference to financial applications.
However, I wouldn’t rely on that.
I always advise anyone intending to remarry to tell their solicitor in good time. That way, they can be fully advised about the consequences and the necessary processes can be implemented.
Fail to do so and your new marriage could start with a nasty surprise.