Wrong couple divorced by law firm error – but when is finalising a divorce too soon a problem and why?

It has been widely reported this week in the mainstream media that a couple had their divorce finalised in error following a mistake by solicitors which a senior judge has refused to overturn.

The couple were separated and had applied for a divorce which had reached conditional order stage of the divorce.  It would appear that more than 6 weeks had passed since the date of conditional order, meaning that an application for final order for divorce could be made using the Court online portal system if the parties wanted to finalise the divorce.  In error, the law firm has admitted that they applied for the divorce to be made final and the Court granted the application within 21 minutes of receiving the online request.  According to reports, the wrong electronic case file was opened; a simple human error and one which can be sympathised with given the application for final order really is just a click of a few buttons in the streamlined online process.

The law firm subsequently applied to the Court for the final order of divorce to be rescinded.  But why was that even necessary might be the thoughts of most.  Surely if the couple wanted to be divorced and had applied for a divorce, why was it a problem to finalise the divorce at the earliest possible opportunity?

Well the answer is for potentially several reasons, but most importantly, because the couple had not finalised their financial arrangements yet.  A common misconception is that a divorce severs financial ties between parties, and while it impacts on some financial relations, it does not fully sever the financial claims that arise on a marriage.  There are therefore two parts to any divorce; the divorce itself which dissolves the marriage and the financial matters which need to be resolved by way of a financial order made alongside the divorce to ensure any financial agreement or arrangement is legally binding.  Without the financial order, the financial claims remain open and the parties do not have a binding financial settlement – even if they have reached an agreement or signed a written agreement of sorts.  Legal advice should always be sought on the issue of financial matters at the time of a divorce, even if the parties’ assets are very limited, as without financial order, the divorce is only really partially complete.

The advice in most cases is not to finalise the divorce and remain married until a financial order has been made.  In cases where there is a pension sharing order, there should be a further delay of 28 days before applying for final order of divorce after the grant of a financial order because a pension sharing order is not effective until the later of 28 days after the date of divorce or date of final order.  Again, legal advice should be sought about the specific circumstances of each case before proceeding to apply for a final order of divorce.

So what might have happened in that case and why should their divorce not have been finalised?  It may have been that one party had a large pension and the parties were discussing or considering sharing that pension.  If the party with the large pension were to now die unexpectedly before a financial order is made, their former spouse is vulnerable as they are no longer their spouse and on their death, not their widow, and thus a right to a widow’s pension might be lost.  And a pension sharing order cannot be made against a deceased party.  There could be other reasons why obtaining the final order was risky in this case.  We don’t know the specific reasons, but clearly the law firm took the view that it was beneficial and right for these parties to remain married pending their financial arrangements being resolved and they were sufficiently concerned to apply to the Court to try and rescind the final order of divorce. 

The Court’s refusal to rescind the final order sends a clear message, to lawyers and lay parties alike in dealing with divorce applications online.  Be careful.  Once a final order for divorce is made, the Court will unlikely overturn it and so if you’re unsure about applying for your final order of divorce or still need to resolve your financial arrangements, please do not rush into making that application without getting some legal advice first. 

At Machins our team of family law specialists are here to help.