22nd January 2020
Should you apply for a decree absolute before having a final financial order on divorce?
Solicitors often advise their clients not to apply for their decree absolute until all the finances of the divorce have also been settled and an order has been approved by the court. But why?
1. In the event of remarriage
If one party obtains a decree absolute and then remarries, he/she may lose some or all of their rights in any subsequent attempt to claim from their former spouse. So, whatever else might happen, it is almost always advisable not to remarry until a divorce financial settlement order has been signed, sealed by the court and the time to appeal the order has passed.
2. Some assets cannot be transferred
There are some circumstances where particular assets, for example, pensions and trust funds cannot be transferred except to a spouse. In those circumstances, it would be wise to delay applying for a decree absolute.
3. Situations where transferring assets is important
There are some situations where transferring assets between spouses is an important part of the financial settlement. In which case, it will be important to consider what tax liabilities may arise upon the transfer of assets (e.g. Capital Gains Tax and Stamp Duty) and whether the parties may be exempt under the tax regime if they remain husband and wife at the time of the transfer.
4. Unexpected death
Although relatively rare, there is the possibility that one of the spouses dies unexpectedly in the middle of the financial negotiations. In that situation, if there is no decree absolute then the surviving spouse will be entitled to all of the benefits as a widow/widower. This can be very substantial, and sometimes far more than may have been available prior to their spouse’s death.
It is therefore always important to consider and obtain legal advice tailored to your personal circumstances before applying for a decree absolute if you have not yet reached a financial settlement in your divorce.
With offices in Sunderland and Newcastle, our family lawyers work with clients across the North East. For a free no-obligation first discussion or to arrange an initial consultation, please get in touch:
Family Solicitors in Sunderland: 0191 5682050
Family Solicitors in Newcastle: 0345 900 5401