The importance of a final Order upon Divorce – How to protect your Lottery winnings!

Divorce proceedings give rise to a number of financial claims that can be made by either party against the other, namely claims to share in property, savings, Pensions and income.

When a Petition for divorce is filed, the Petition will usually include, on behalf of the Petitioner, an application for such claims to be considered by the Court in the event of agreement not being reached.

When agreement is reached (which in most cases it can be) application can be made, in writing, for the Court to make a final Order recording the agreement. Alternatively, if the Court has to determine how financial claims are to be settled, an Order will be made finalising those claims.

The final Order ‘closes the book’; once it has been made by the Court, whether by consent with the agreement of the parties or imposed by the Court, neither party can come back at any time in the future to seek any further financial remedy whatever their future circumstances.

There is one exception to this and that is where the Order has provided for maintenance to be paid. A maintenance order, whether for the benefit of a child or a spouse is always variable.

Generally, however, all other Orders made in relation to capital property and Pensions are final Orders.

Having a final Order in place means that both parties are able to move forward with their lives without worrying whether any good fortune, through luck or hard work, is likely to be ‘attacked’.

Even if you had nothing at the time of your divorce, and have no property or savings to distribute, you should still seek a final clean break Order, otherwise, if you win the Lottery, you could well find your ex-spouse filing an application with the Court seeking a share in the same – even if your divorce was years ago.

It is also the case that if you fail to deal with your marital assets at the time of your divorce, believing, for whatever reason, that it will be easier to deal with at a later date, or perhaps more beneficial – bear in mind that the Courts will determine your claims based on your financial circumstances as they are at the time the claim is made not as they were when you divorced, but at the same time, the Court will not allow you to profit from your delay if that is found to have been your intention.

It is also worth remembering that if you are the Respondent to the proceedings and you do not deal with your financial claims, then, unless an application has been filed by you, and is pending, such claims are lost (save in relation to jointly owned property) in the event of your remarriage.

In short…
– If you have nothing: a final Order will confirm that anything either of you receive in the future will be protected.
– If you have assets: deal with them now, obtain an Order – or you may lose out.

by Deborah Allen from the King’s Lynn office