Unfinished business after divorce: the risks of delay

A divorce may be final, but unresolved financial arrangements can leave both parties exposed. Acting promptly can help avoid complications later.

It is easy to assume that once a divorce is finalised and a final consent order is approved by the court, matters are concluded. In practice, that is not always the case. Many require further steps before they take effect and if those steps are not taken, the consequences can be significant.

This is particularly important where circumstances change after the order is made, for example if one party moves overseas or dies before the terms have been implemented.

It is not uncommon to see matters involving pensions not finalised because at the time of the divorce the pension pot “wasn’t worth much”, however their value can increase significantly over time.

Why implementation matters

A final consent order sets out how assets should be divided, including property, savings and pensions. It is legally binding once approved by the court. However, certain elements such as pension sharing or property transfers do not take effect automatically.

For example, a pension sharing order must be served on the pension provider, together with the required documentation, before it is implemented. Until that process is complete, the pension remains in the original member’s name.

Delays can arise through oversight or misunderstanding, but leaving matters unresolved can expose both parties to unnecessary risk.

What if one party moves overseas

If a former spouse relocates abroad before the final order has been implemented, enforcement can become more complicated.

Although the UK court retains jurisdiction over the order, enforcing it in practice may depend on the legal processes of another country. This can lead to delay, additional costs and uncertainty particularly where assets have not yet been formally transferred or divided.

In relation to pensions, if the necessary steps have not been completed, the receiving spouse may not yet have a separate entitlement. Taking prompt action before a move overseas can therefore be critical.

If one party dies before implementation

The position can be more serious where a party dies before the final consent order has been carried out.

For pensions, timing is key. A pension sharing order only takes effect once implemented by the pension provider. If the member dies before that stage, the intended share may not pass to the former spouse as expected.

Instead, any death benefits are likely to be dealt with under the pension scheme’s rules, often at the discretion of the trustees. This can result in a very different outcome from that originally agreed. It is imperative that provision is made within the consent order for how the pension share will be dealt with in these circumstances.

Outstanding financial obligations such as lump sum payments or property transfers may instead form part of the deceased’s estate. The former spouse may then need to pursue a claim against the estate to enforce the terms of the order. This is where it is important to have severed the joint tenancy of any jointly owned properties followed by having a Will stating how the deceased assets are to be distributed upon his /her death.

Avoiding unnecessary risk

These situations are often avoidable. Once a final consent order is made, it is important to ensure that all required steps are completed without delay. In particular:

· pension sharing orders should be implemented as soon as possible

· property transfers and financial payments should be progressed promptly

· any changes in circumstances, such as relocation or ill health, should be taken into account

A final consent order provides the framework for settlement, but it is the implementation of it that secures the outcome. Where steps remain outstanding, or circumstances have changed since your divorce, early advice can help protect your position and avoid complications later.

Our family law team can advise on the implementation and enforcement of final consent orders, ensuring that agreed settlements are carried out effectively and with certainty.

Contact our team:
Sunita Chauhan s.chauhan@gullands.com
Julie Hobson j.hobson@gullands.com
Amanda Finn a.finn@gullands.com