One of the questions people ask most frequently after a divorce is whether there is a time limit on making a financial claim. The answer in England and Wales is not straightforward, and misunderstanding it can have serious long-term consequences.
Unlike many legal claims, financial remedy claims following divorce do not become time-barred in the conventional sense after a set number of years. A former spouse can bring a financial claim against the other at any point after the divorce is finalised, unless a financial order has been made that brings those claims to an end.
This is one of the most important things to understand. A decree absolute or final divorce order does not close the financial chapter. Without a consent order or a financial remedy order made by the court, both parties retain the right to make claims against each other indefinitely.
There is one major exception to the general rule. If a former spouse remarries, they lose the right to make certain financial claims against their previous partner. Specifically, remarriage extinguishes the right to make a claim for property adjustment or a lump sum in respect of that marriage.
Importantly, this only applies to the person who remarries. If you remarry but your former spouse does not, they can still bring financial claims against you. This is one of the situations where acting before remarriage, to reach a formal financial settlement, is particularly important.
Our family law barristers can advise on how remarriage affects your specific position.
Even though there is no formal time limit, delay creates practical difficulties. Financial records become harder to obtain. Assets change in value. People's circumstances change significantly. If a claim is brought many years after the divorce, the court will assess the current financial position of both parties, not the position at separation. This can work in either party's favour or against them, depending on the circumstances.
In some cases, significant delay has led courts to reduce what a claimant is awarded, on the basis that the delay itself suggests the claim was not urgent and that living separately for many years has allowed each party to build an independent financial life. But this is not a guarantee, and it is not a risk worth taking without proper advice.
It is important to distinguish between financial claims between former spouses and claims relating to child maintenance or financial provision for children. Claims relating to children are governed by different rules and can be made or varied at any point until the children reach the relevant age. The position is not extinguished by a financial order between the parents.
If you want certainty, the only reliable approach is a consent order or financial remedy order made by the court. Once such an order is in place and has been properly structured to include a clean break, both parties' financial claims against each other in respect of the marriage are brought to an end.
An informal agreement, however detailed, does not achieve this. It has no legal force and cannot prevent a future claim being made. This is why getting a properly drawn consent order, even in amicable separations, is so important.
You can read more about how this works in our article on the costs involved in using a direct access barrister to help with financial remedy proceedings.
If you want help with early advie around a financial order our team can quote you. Visit our contact page.