When married people separate, the major legal issue they tend to see before them is a divorce. Divorce is indeed a legal process, and an important psychological and emotional one too, but many people don’t understand that obtaining the actual divorce is generally just a form-filling exercise. The part of a separation process that usually takes more time and energy is working out what arrangements for the children are in their best interests, and deciding how to share out your money and property. That’s why those are the things we tend to write about in these blogs, rather than the divorce process itself.
To divorce someone, you need to have a reason: that the other person has committed adultery, or behaved unreasonably, or that you have been separated for two years and both want a divorce, or separated for five years. (We’d love to see no fault divorce introduced in England and Wales, but sadly at the moment we’re stuck with this system, which was devised back in the 1960’s – read more about that here.) In practical terms, it works like this: the petitioner (the person who starts the divorce process) sends the forms to court, and the respondent (the other spouse) sends in a form to say that he or she has also received the papers. The petitioner gives a few more details. The details are considered by a legal adviser at the court centre who establishes whether the legal criteria for a divorce are met. If they are, decree nisi can then be pronounced – this is the ‘nearly done’ stage of the divorce. The petitioner can apply for the divorce decree to be made final (‘decree absolute’) after six clear weeks have passed. If the petitioner doesn’t apply, the respondent has the opportunity to do so after three further months have gone by.
There’s usually no judge involved in a divorce itself these days at all, and nobody has to go to court. In 99% of cases, things progress smoothly through to decree nisi and eventually to decree absolute, and the people involved move on, in time, as people do. However, occasionally there is a problem at decree nisi stage, where one person wants the divorce to be made final, and the other feels that there is a reason why this shouldn’t occur. In those circumstances, sometimes a judge has to get involved to sort it out, as happened recently in a case reported this week.
Making a divorce final before all financial matters are resolved can disadvantage the person who is financially weaker, for example by removing her (or his) entitlement to pensions in the event of the death of the other person, or removing entitlement to payments under a trust or foundation arrangement, or the ability to litigate at all in some overseas jurisdictions. Lawyers acting for a financially weaker party will do their best to get an undertaking from the financially stronger one that he (or she) will not apply for decree absolute until the financial arrangements are concluded. However, this isn’t always forthcoming.
The law says that the court has the power to delay the grant of decree absolute in a divorce only in exceptional circumstances. In this case, the wife claimed that the exceptional circumstances that dictated that her husband should not be able to make the divorce final were that he was worth many billions of pounds but had disclosed less than half a million as his wealth. She said therefore that she did not know whether or not she would be prejudiced financially by a finalised divorce because she had not been made aware of the full extent of his assets, most of which were overseas, and didn’t know what being divorced would do in respect of her access to what he had in order to meet her needs.
The husband denied that he had failed properly to discharge his duty of full and frank disclosure, saying that a group of overseas companies to which the wife thought he had financial entitlement was in fact owned by other members of his family. He also denied that there were any other exceptional circumstances. However, the judge agreed with the wife, and stopped the husband’s application. Some evidence was advanced that the husband had been less than open; but the court was not considering the financial picture at that point. It was solely concerned with whether the wife’s interests could be prejudiced by a grant of decree absolute.
The court said that the previous case law on the matter was not binding because, “The difference between [that case], as against this case, is that there was no offshore structure in [that case] that concerned the court. I take the view that that makes all the difference. It is the fundamental issue in this case. I take the view that there is a potential for very considerable prejudice indeed in cases where there are such offshore structures. Whether or not you are a wife or an ex-wife can make all the difference.”
And so it appears that the law will do what it can to protect the spouses of the wealthy – or at least those with wealthy families and financial interests based overseas – from being prejudiced by an inopportune application to make a divorce final in this country. For most of us, however, the law remains the same: unless there are exceptional circumstances, either person can apply for a decree absolute freely in accordance with the law about the timing of the application. If you’d like to make an appointment to talk to Tricia, Gail, Simon, Adam or Sue, please give us a call on 01223 443333.