Divorce - The need for legal advice
20 January 2010
Stephen Smith, Partner and Head of the family law team at Brachers LLP, comments that a recent case involving a legal advisor failing to apply for a divorce highlights the need for parties, when they are considering separation and divorce, to obtain independent legal advice from a solicitor.
The case involved a legal advisor in the North East of England forging divorce documents and tricking her clients into believing that she had obtained a divorce on their behalf. Instead the advisor had pocketed the cash, including funds for court fees, which she received from her clients and had sent her clients forged papers. The unfortunate clients had assumed that they were now divorced and had moved on with their lives making new relationships. The advisor has now pleaded guilty to eight charges of fraud and is likely to face a custodial sentence.
Whilst this case is an extreme example it does highlight the need for people to obtain proper legal advice from a suitably qualified lawyer.
The existing news reports on the case highlight the distress to the families concerned but one point which has not, as yet, been considered is the fact that the spouses still have financial claims against each other. This could mean that if one spouse's financial position has improved then he or she may have to make a higher payment to the other spouse than would have been the case if finances had been resolved at the time of the divorce.
Stephen comments that even for couples who handle the divorce process themselves they should seriously consider obtaining legal advise to ensure that all financial claims are dealt with, so far as possible, at the time of the divorce. A divorce, in itself, does not extinguish one spouses claims against the other, even if at the time of the divorce the parties split all their assets equally. There have been several recent cases, including ones involving lottery winners or individuals who have developed successful businesses, where a former spouse had made a successful financial claim several years after the marriage had ended as, at the time of the divorce the parties did not obtain an order dealing with the financial claims which they each had against the other.
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