When a marriage breaks down, it can be a long road to final independence and things that were said at the start of the breakdown, may no longer be practical in the long term.
The papers recently reported how Katie Price’s estranged husband Kieran Hayler has told her that they should be revisiting matrimonial finances when he saw that building work was taking place on the former matrimonial home.
“Katie tells her ex he was "never after money" but he tells her he's changed his mind now that he sees her doing up her house.”
It is not uncommon for one spouse to take the view in early stages that they should walk away from the marriage with no financial provision; however, the court’s starting position in respect of financial division is equality, and the needs of both parties. The Matrimonial Causes Act 1973 provides little room for morals, blame or guilt.
Where a financial agreement has been reached between parties, this should always be finalised by way of a court order (consent order). Financial claims do not automatically end upon divorce and financial claims remain open. Therefore, it is important to secure a final order dismissing those future claims (where appropriate as there may be on-going maintenance claims depending on the situation).
Nevertheless, as Katie Price has realised, people can change their mind! Just because a spouse tells you in the first instance that they do not want anything (financial) from the marriage; this does not mean that they will remain of that same view in later months. Likewise, ‘shoulda-coulda-woulda’ does not help your future if you have chosen to walk away from a marriage with no financial relief.
In the case of X v Y, Munby J (as he then was) said (at para 103):
'The court will not lightly permit parties who have made an agreement between themselves to depart from it.'
Accordingly, if it is believed that a financial agreement has been reached and one party later looks to rescind from the agreement, an application can be made to the court for that party to show cause why an order should not be made in the original agreed terms.
The court will then consider on the face of any documents produced whether there was an agreement settling financial issues; however, be warned, this will also be subject to subsequent consideration of the agreement in light of the factors set out in section 25 of the Matrimonial Causes Act 1973. If the agreement is not considered fair and reasonable by the presiding judge, then it is unlikely to be made an order in those terms.
Whilst it is good to have informal discussions of how the finances should be split following a marriage breakdown, it is always important to take independent legal advice. This is something that Katie and Kieran should be doing as soon as possible!