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If somebody asked you to explain what a Final Order (previously known as Decree Absolute) is and what it does, would you be able to?
Many people would proffer an explanation that it is an announcement by which a marriage is formally pronounced to be at an end. And they would not be wrong.
But did you know that the pronouncement of a Final Order does so much more than simply end a marriage in the eyes of the law? Which is why it is imperative that proceedings are dealt with in the correct sequence and that certain parts are not skipped over or rushed into to give effect to any later orders granted at precisely the right time.
For example, if financial remedy proceedings are not dealt with to the conclusion by way of a sealed consent order, and a person rushes to obtain a Final Order to end the marriage, the other rights granted to the parties by the very nature of them being married are immediately lost. This could include matrimonial home rights which may entitle someone to remain in a property owned by their spouse until a specified point in time. But as the name suggests, any such rights are terminated upon the termination of their marriage in law. There are workarounds that can be made, but this would involve applications being made to and granted by the Court and these are not automatic.
Similarly, if the parties are divorced and one of them dies before formally concluding their financial remedies matter, this is likely to affect what happens to the deceased party’s estate. If a new Will has been made, for example changing the way in which the deceased person’s assets are to be distributed, the terms of the Will are likely to take precedence. Applications can be made under the Inheritance Act 1975, but these can be complicated, expensive, and could be challenged by potential beneficiaries.
Pensions can be tricky beasts to deal with at the best of times but, if a party rushes ahead to end a marriage before financial remedies are dealt with and one party dies, the remaining spouse not only loses any automatic rights they may have had to receive a pension upon the other’s death, but they also lose the ability to make a claim for a pension sharing order. Given that pensions are often one of the largest assets in the matrimonial pot, the timing of the Final Order is crucial.
There are certain things that parties can do to protect themselves in proceedings such as reaching an informal agreement with the other party not to finalise the marriage until the conclusion of financial remedy proceedings. This is a good start but is only effective if both parties adhere to this informal agreement, otherwise it is worthless, and the parties could find themselves in one of the unfortunate scenarios described above. Alternatively, an application can be made to the Court for such an application to be stayed until the conclusion of financial remedy proceedings. There is case law to support such applications being made and granted where one party can identify specific prejudices they may suffer because of the early pronouncement of a Final Order.
The bottom line is that, whilst the application for a Final Order is the shortest and seemingly the simplest application in the entire divorce process, it holds the greatest consequences for the parties if not used correctly. Your Solicitor will advise you, based on your set of circumstances, when it is best to apply for a Final Order.
As with most things, timing is everything. So, regardless of the circumstances, however much a party may be tempted to end their legal union with their former spouse, they would be wise to consider all the points raised here before doing so.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles