Its all about the timing…….
Divorce is a means to an end. There is no reward in being the one to issue, no greater financial pay out. Its always a sad time and whilst there may be a fleeting feeling of ‘one-up-manship’ in the great scheme of things, it makes little moral difference who is the petitioner and who is the respondent.
From a practical point of view however, there can be an advantage in that s/he who issues the petition has control of the timingof applications for the provisional decree of divorce: the decree nisi and then the final decree: the decree absolute.
Is this important? Well, it could be. Right up to the point of declaration of the decree absolute, you are still, technically, married. This married status means that you have the benefits being married brings with it: the most valuable are usually spouses rights under a pension, the right to inherit in the event of death and what could be vital to your case, the right not to have your home sold from under you if the house is in the sole name of your spouse.
Matrimonial Homes Rightsare what a spouse has when s/he is not named as the owner of their home in the Property Register kept at the Land registry. The rights can be registered against the property as a ‘restriction’ by lodging a Matrimonial Homes Right notice and once registered, the owning spouse cannot ‘deal’ with the property ie mortgage or sell it, without the non-owning spouse being given notice. This right ends upon the decree absolute being presented to the Land Registry who will then cancel the restriction. So, if you want your Matrimonial Homes Rights to last a bit longer, you might want to postpone your application for the decree absolute until financial matters have been resolved. You can apply to extend your Home Rights beyond decree absolute but this has to be the subject of a specific application to the Family Court and the request may not be granted just for the asking if your spouse objects.
If your spouse dies before the divorce is completeand you were named as a beneficiary under his/her Will, you would still inherit. Equally, if there was no Will, as a spouse, you would also inherit under the intestacy rules. If there are any assets that you & your spouse own jointly that haven’t yet been split satisfactorily under any divorce settlement, these would be inherited by the surviving spouse, so you might do better financially as a spouse than as an ex-spouse! As with any aspect of law, there are always exceptions…..
Pensions are always a minefieldbut essentially, you might want to ensure that you don’t apply for the decree absolute until at least 28 days after any pension sharing order is made as the order only comes into effect on the later of the granting of the decree absolute or 28 days after the making of the pension sharing order. So, if the decree absolute is granted and your spouse dies within 28 days of the order then there is a chance that the pension sharing order will fail. This is because the pension fund with have terminated on the member’s death before the pension sharing order came into effect. In addition, as the marriage has been formally ended by the decree absolute, the surviving ex-spouse would not be entitled to any spousal benefits under the pension, for example, a widow/widower’s pension. You would be left with no provision whatsoever. So if you have a pension sharing order, you would be well-advised to wait at least 28 days from the date of the order before making the application for decree absolute – just in case. There can then be no chance of being left without both the pension share and spousal benefits under the pension itself.
So patience could be a very economical virtue………
Susan Devereaux, Solicitor