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Short marriage, clean break order
July 22, 2020 10:13PM
Short marriage. No kids. Entirely separate finances. My husband has a house in his name but I believe there's very little equity in it. Even if this wasn't the case, I wouldn't be interested. I'd like a clean break order but my husband is reluctant to complete the paperwork. I believe he has substantial debt and doesn't want to reveal it. The debt is in his name only. Do I need to push it? I have no assets of my own he could come after. The only thing might be if in the future I inherit. Given that it's such a short marriage and our finances have always been separate, do I really need to worry about him coming after an inheritance in 10+ years' time? Thank you.
Re: Short marriage, clean break order
July 23, 2020 10:40AM
Generally speaking it is almost always better to get a formal court order settling the financial issues arising from the marriage at the time of the divorce. For chapter and verse about why that is so you are advised to read the information at this link

[terry.uk]

Having said that, all cases are different and there may be cases where the risk is small. For instance, if the wife is the petitioner in a divorce and she knows that her husband is going to remarry as soon as the ink is dry on the decree absolute there would be no urgency about settling the financial issues quickly. That is because in this case the husband's right to make any claim in respect of the marriage would be barred as soon as he remarried if he did not make the claim before remarrying.

Please note, though, that these cases are the exception and they usually require at least some advice before committing to them. That is because there are technical factors which can make all the difference. For instance the husband in the example above would not be safe from financial claims by his ex wife if it was she who remarried as soon as decree absolute was granted. That is because in this example she was the petitioner in the divorce. The petitioner will typically make financial claims in the divorce petition. Therefore she will probably have made the claims before she remarried and she could pursue most of them even after she had remarried.

Therefore if anyone is ever minded to take this risk it is usually sensible to take advice in order to know what the risk actually is.
Re: Short marriage, clean break order
July 23, 2020 11:56AM
Thank you for your reply.
I read the article you sent. If I've understood correctly, the wife was able to claim against the husband some 20 years after their divorce for money he had made after the divorce from a successful business. That is my concern, although with regard to a possible inheritance.
I wonder though if the issue in that case was the fact that the wife had struggled to take care of the children following the divorce, whereas the husband had contributed nothing.
In the case of myself and my husband, we have no children. We've only been married 3 years. We really have no assets to share today. If I did inherit, say in 20 years' time, what could be the possible justification for a court determining at that point that I should pay my ex-husband money?
Re: Short marriage, clean break order
July 23, 2020 02:51PM
>>If I did inherit, say in 20 years' time, what could be the possible justification for a court determining at that point that I should pay my ex-husband money?

I dare say Mr Vince asked himself the same question but the court found a justification. Although courts never actually say so what situations like this are really about is that the court sees that Mr Vince has a lot of money and can afford it. If on the facts of this case Mr Vince was, say, in a similar financial position to his ex wife I don't for a moment think the ex wife's claim would have been entertained for two seconds.

There is something else which is noteworthy about this case which is the length of time after decree absolute that the claim was made. The point is in almost all other areas of law there are time limits for pursuing a claim. For instance, you have to pursue a claim for personal injury within 3 years of the injury. Similarly you cannot pursue a debt after 6 years have passed unless the debt was incurred under a deed (such as a mortgage) in which case the period is 12 years. The point is most causes of action have limitation periods. Most lawyers would have said that it was not possible to make a claim six years after decree absolute. The court here decided differently and in effect said that there was no time limit.

Incidentally the Supreme Court did something very similar in deciding the Boris prorogation case. The 1689 Bill of Rights very clearly says that the courts do not have jurisdiction over any proceeding in Parliament. Most people would think that was very clear and according to any normal use of language proroguing Parliament is a proceeding in Parliament. No doubt that is what the Attorney General advised the government. However, the Supreme Court thought differently and they decided this was a 'proceeding' in which they could interfere.

So I can tell you exactly what sort of risk you would be running. The risk would be that your inheritance was substantial and that at the time your ex husband was penniless and that he had suffered from some sort of disability like Parkinson's Disease. Those are the type of circumstances under which a court might well intervene just as it did in the case of Mr Vince and the prorogation case. They do it because they think it is 'fair' even though others might possibly disagree.
Re: Short marriage, clean break order
July 23, 2020 03:26PM
So essentially the courts ultimately just do whatever they want. Interesting. Your reference to Parkinson's made me see things clearly. My husband doesn't have Parkinson's. He does, however, have issues with alcoholism and mental health which, as I understand now, kind of present themselves in cycles. I can now fully foresee a time in the future when these problems become exacerbated and he's unable to work and, if I happen to have any money at the time, the courts deciding that it would be nice for him to have it to "help" him. I'm going to continue to pursue the clean break order. This was really helpful. Thank you.
Re: Short marriage, clean break order
July 23, 2020 07:24PM
>>So essentially the courts ultimately just do whatever they want.

They never actually ever say that and sometimes they just cannot do what they want because the words of statute law are clear. They will always rationalise what they do not least because courts have to give reasons. However, if you look a little beyond that you will that courts have a long history of stretching the law. If you ask a court, 'Do you have jurisdiction?' the answer will almost invariably be, 'Yes' unless there is the most explicit prohibition. Like most organisations courts will tend to expand their jurisdiction rather than limit it in any way.

In your particular circumstances you may not be running much of a risk if you do not get a court order settling the financial issues arising from the marriage once for all. The problem is that you have no way of knowing what the situation may be in 10 years' time. Facts may have changed in such a way that the courts might look with more sympathy at your (ex) husband's situation in 10 years' time perhaps for one of the reasons you have mentioned. I do think in the situation you describe that the risk is small and it may be one worth taking. It's just that you cannot be 100% sure.
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