About 20 years ago, I received a telephone call one Thursday afternoon. The caller explained that he was getting married in two days’ time, but there was a problem. He wasn’t divorced yet.
I am pleased to say that he was not one of my clients. If he had instructed me to act for him in his divorce, rather than trying to represent himself, I would have warned him to not make any wedding plans until his divorce was final. The caller had rushed ahead and booked his wedding, assuming that as the Decree Nisi had been pronounced in his divorce eight weeks before his wedding day, he would be free to go ahead and remarry.
The court can make the Decree Absolute bring a marriage legally to an end six weeks and a day after the pronouncement for Decree Nisi. What this now very unhappy bridegroom-to-be had not realised was that the Decree Absolute does not follow automatically; his soon to be ex-wife (also not one of my clients) had to make the application to the court for the Decree Absolute. And she was now refusing to do so in order to, he claimed, screw up his special day. What could he do about it?
The answer was very little. If he was unable to persuade his wife to make the application immediately, then his wedding could not go ahead. (I am not sure how he managed to give the necessary 28 days’ notice of intention to marry to the Registrar of Births, Deaths and Marriages – I suspect he may have fibbed to the Registrar and said that he wasn’t married so that he did not have to produce a Decree Absolute.) There is a little used application to expedite the making of Decree Absolute, usually only used where someone is about to die and wants to remarry urgently, but I was very doubtful of the chances of success in these circumstances. There was also no likelihood that the court would be prepared hear such an application in time.
This is a classic example of someone in a divorce putting the cart before the horse. People make this mistake, time and time again. They are so desperate to get through the whole dreadful process of divorce that they rush ahead rather than doing things in the proper order.
I often find that some clients, faced with the prospect of a divorce process that can take well over a year and involves a sizeable legal bill, will try and find short cuts. They will try to do things in the wrong order. They will try to do bits of the work themselves rather than incur legal fees. Entirely understandable; but I have it point that these often aren’t short cuts. They are short circuits. Short circuits will stop machinery working, not make it go faster.
The fact is that solicitors and the law have processes that we have developed over the years to ensure that the job is done properly. We don’t have these processes because we want to drag it out or charge more than we can justify. We have processes because if you don’t follow the process, things get overlooked and things go wrong. I am not suggesting that these processes are infallible; I am always keen to find improvements in anything that we can do, but often I can see chaos looming as a result of “short cuts” suggested by clients.
The man who could not get remarried is a little unusual, although not the only time that I have encountered this in my career. A more common example of putting the cart before the house is the client who remarries without first sorting out the financial aspect of the divorce. A lot of people assume that you cannot divorce without first sorting out financial issues. In fact, you can, although it is often good practice to not do so.
The problem with remarrying before getting the finances sorted out is that you can lose your right to make such an application. You may fall into what is known as the “remarriage trap.” An application for a financial order has to be issued at the court before the applicant remarries. This often happens to the spouse who was the respondent in the divorce. The Petitioner can often easily avoid the remarriage trap simply by ticking the box on the divorce petition notifying that the court and the respondent that he or she might apply to the court for a financial order, but there is no equivalent box on the Acknowledgement of Service of Divorce Petition for the Respondent to tick. Therefore, one of the ex-spouses may be able to make an application, but the other one may not.
The remarriage trap makes no sense whatsoever. It effectively means that it may make it impossible for someone who has divorced and remarried to obtain a fair share of the assets or to apply for a clean break order. For divorcees who have fallen into the remarriage trap, their ability to sort out any financial dispute is limited. If there is a dispute about a property, they could issue a claim under the Trusts of Land and Appointment of Trustees Act 1996 for an on order for sale and a declaration of beneficial interest. This is a blunt instrument of a process, usually only used by unmarried couples. It does not imbue the court with the same level of discretion as to how to achieve a fair outcome that also meets the parties’ needs.
They can also issue an application for a pension sharing order as part of the divorce. Bizarrely, while the remarriage trap prevents someone in the remarriage trap from applying to the court for spousal maintenance (which is a sensible law) and from applying for a property adjustment order and lump sum order (which is not a sensible law), for some reason it does not prevent applications for pension sharing orders. I can see no sensible reason for why the position for pension sharing orders is different and I suspect that this may be a matter of the remarriage trap being overlooked when pension sharing orders were belatedly introduced in 2000. But what if there isn’t a pension against which a claim can be made?
Another example of putting the cart before the horse is to implement the terms of an agreement too early. The safest way forward is to negotiate an agreement, then to reach an agreement, then to formalise the agreement in a financial consent order made by the court. This is not a swift process, and there can be some delay where the court takes an eternity to make the Decree Nisi (which is a necessary prerequisite for the court to make financial order).
It is common place for people to want to implement the terms of an agreement before the order can be obtained. This is because life moves faster what the Family Court can. Couples don’t want to have wait until they are able to move on. They may want their share now so that they can buy a new house. They may have a mortgage offer which is about to expire. In those cases, we have to warn them that implementing before the order is made involves a risk that the deal falls to pieces and the other side stops co-operating once they get their share and they then come back for more. It’s probably a small risk, but it is still a risk.
But there are also cases where people actually start implementing the agreement before there is actually an agreement. They rush ahead and commit to things before even getting confirmation that there is an agreement. They make dangerous assumptions. They often implement terms before anyone has had any legal advice, only to find that their spouse sees a solicitor, is advised that they are settling for less than they ought and that they now want more. As you can imagine this causes chaos.
How to avoid this?
Firstly, make sure you use a solicitor. At the very least, get some initial advice from a solicitor so you know where you stand.
Secondly, wherever possible do thing in the right order and don’t rush ahead.
Don’t put the cart before the horse. And (mixing my metaphors) if you do, you may find that taking steps later may just be closing the stable door after the horse has bolted and taken your cart with it.
16 October 2018