A stitch in time – taking legal advice early can prevent costly mistakes in respect of matrimonial finances

Over the last decade, the family courts in England and Wales have seen a significant increase in litigants in person (“LiPs”). Individuals are increasingly navigating divorce and financial remedy proceedings without legal representation, often due to the rising cost of legal services and the reduction in legal aid.

While many separating couples believe they can resolve matters amicably without solicitors, an alarming trend has emerged: a growing number are failing to obtain a Financial Remedy Order from the court, leaving them financially exposed long after the divorce itself has been finalised.

The Misunderstanding Around Divorce

One of the most common misconceptions in family law is that once a Final Order (formerly Decree Absolute) is granted, financial claims between spouses automatically come to an end.

They do not.

Financial claims remain open unless they are formally dismissed by a court-approved Financial Remedy Order. This means that even years after a divorce, one party may still be able to bring claims against the other for:

• Property adjustment
• Pension sharing
• Lump sum payments
• Spousal maintenance
• Claims against future assets or inheritance

Many litigants in person are unaware of this critical distinction.

Why Are More People Acting Without Lawyers?

The rise in LiPs has several causes:

Cost of Legal Representation

Family litigation can be expensive, particularly where disputes become protracted. Many individuals believe that they cannot afford ongoing legal fees.

Online Divorce Processes

The digitalisation of divorce applications has made the procedural aspect of divorce appear straightforward. While obtaining a divorce itself may now be simpler administratively, resolving finances remains legally and strategically complex.

Social Media and Informal Advice

There has been an increase in individuals relying on online forums, social media content, or informal agreements drafted without legal advice. Unfortunately, these arrangements are often unenforceable.

The Dangerous Assumption: “We Have Agreed Everything”

A frequent scenario involves separating couples agreeing informally how assets will be divided. They may sell a property, split savings, or decide that neither party wishes to make claims against the other.

However, without a sealed court order:

• The agreement is not legally binding;
• Future claims remain possible;
• Circumstances can change dramatically over time.

An ex-spouse who later experiences financial hardship may decide to pursue claims years after separation. Likewise, if one party later acquires significant wealth, the absence of a clean break order can become extremely problematic.

The Courts Continue to See Post-Divorce Claims

Case law has repeatedly demonstrated the risks of failing to formalise financial arrangements. Former spouses have successfully brought claims many years after divorce where no Financial Remedy Order was made.

Even where parties separated amicably, the absence of legal finality creates uncertainty.

For many individuals, this issue only becomes apparent when:

• they wish to remarry;
• they purchase property;
• they receive inheritance;
• they approach retirement and pensions become relevant.

By that stage, resolving matters can be significantly more costly and contentious.

Why Financial Remedy Orders Matter

A properly drafted Financial Remedy Order provides:

• certainty;
• enforceability;
• protection from future claims;
• clarity regarding pensions, property, and maintenance;
• finality through a clean break where appropriate.

Importantly, the court retains oversight to ensure agreements are fair in all the circumstances of each case.

The Impact on the Family Courts

The increase in litigants in person has also created wider pressures on the justice system.

Judges are frequently required to:

• explain procedure to unrepresented parties;
• manage unrealistic expectations;
• deal with incomplete documentation;
• adjourn hearings where procedural rules have not been followed.

This inevitably increases delay and court time.

At the same time, many LiPs remain unaware that obtaining a Financial Remedy Order can often be achieved by consent without contested litigation, particularly where parties have already reached agreement.

Early Legal Advice Can Prevent Costly Mistakes

Not every divorce requires extensive litigation. However, most cases benefit from at least some specialist legal advice, particularly regarding financial claims and clean break provisions.

Even where parties wish to minimise costs, obtaining advice on:

• disclosure obligations;
• pensions;
• property rights;
• future claims; and
• drafting a consent order and associated documentation

can prevent significant problems and significant costs later.

Conclusion

The rise in litigants in person reflects broader economic and social changes within the family justice system. While many individuals successfully manage aspects of divorce proceedings independently, the failure to secure a Financial Remedy Order remains one of the most serious and common mistakes made after separation.

A divorce may legally end a marriage, but without a court-approved financial order, it rarely ends financial claims.

For separating couples in England and Wales, understanding that distinction is essential.

For advice and assistance do not hesitate to contact the Family team at Browell Smith and Co on 0191 691 3418 or request a callback.