You might have caught the recent press articles about a woman who sued her solicitors for apparently failing to tell her that getting divorced would end her marriage. It certainly caught our eye, and made us raise a quizzical eyebrow over the morning cuppa! So we thought it worth having a look at the actual case behind the headlines. You can find the Independent’s article on the case here.
The case concerned a Roman Catholic lady, Mrs Mulcahy, who was married to a professed atheist. She was represented by solicitors who advised her, and with whose assistance she was able to reach a negotiated financial settlement with her husband. Following the settlement, the solicitors applied for the decree absolute, the final decree of divorce which terminates the marriage. Following which Mrs Mulcahy sued her lawyers.
It seems that as her husband was an atheist, Mrs Mulcahy viewed herself as having sole responsibility for preserving the sanctity of their marriage. Whilst she had no objection to civil divorce, to the extent that it could provide a financial remedy when married people were no longer able to live together amicably, she did not want her husband to be able to remarry as that would (in her mind) destroy the sanctity of their marriage. Whilst Mrs Mulcahy wanted to use the divorce proceedings to sort out their financial arrangements, she claimed that she had also wanted to be able to “abandon” the divorce once the finances were sorted. Apparently she was happy to get to the decree nisi stage, but did not want the decree absolute as that would enable her husband to remarry.
Her case against her lawyers fell down largely because the judge hearing her complaint was not convinced that she had actually explained her wishes to her lawyers, who would then have been able to advise her differently. Whilst they were aware of her Roman Catholic faith, they did not know of her desire to uphold the sanctity of her marriage by preventing her husband’s remarriage, or that she didn’t actually want to get divorced. Had they been so aware, they would have been able to advise her as to other options such as Judicial Separation. Mrs Mulcahy also claimed that had she been advised about Judicial Separation and opted for that, she would have got a better financial settlement, but the judge concluded to the contrary that largely the same financial outcome would have occurred.
We have written about Judicial Separation before, but in essence, it has similar ancillary ramifications to divorce in that a court can divide the matrimonial assets in largely the same way (although pensions cannot be shared and there cannot be a final clean break), and the courts have the same powers to make orders in relation to children as they would in relation to divorce proceedings. However once a decree of Judicial Separation is granted the parties are no longer obliged to live together and they are considered legally separated, although they remain technically married. In these circumstances neither spouse is free to remarry.
Mrs Mulcahy did not succeed in her claim against her former solicitors, nor did she win her appeal against the dismissal of her claim, but her case was certainly an interesting one. As well as the decree absolute terminating the marriage, and allowing either party to remarry (but please take advice about remarriage if you have a maintenance order); there are various other consequences of a divorce (or dissolution) decree which not everyone may be aware of.
If you are separating you also need to think about your Will. Once you are divorced, then any gifts to your former spouse will be omitted from the Will (i.e. the gift is revoked and passes back into your estate), and if you have appointed them as executor they will be unable to carry out that role. This may render the Will unworkable.
If you die intestate (i.e. without having made a Will), then your former spouse will not automatically be entitled to a portion of the estate in the same way that a surviving spouse would, although they might be able to make a legal claim for financial provision from your estate.
Marriage or civil partnership automatically renders any Will invalid (unless signed “in contemplation of marriage or civil partnership”), so if you are thinking about remarriage or a new partnership after divorce, please take advice about estate planning at the same time to avoid unintended consequences should you die.
There may also be implications for financial products such as pensions.
In essence if, like Mrs Mulcahy, you have particular aims or concerns about the process, please make those clear to your solicitor early on so they can advise you as to your options and the effects of those upon your longer term future.
As always, if you would like to make an appointment to discuss a family law matter with us, please give Adam, Gail, Sue or Simon a call on 01223 443333.