How do we get future claims dismissed?

[InsertWittyUsername]

STBXH and I will soon be getting divorced on the ground of two years separation and will be doing the paperwork ourselves. We have 50/50 custody/contact with DC and this has worked very well for 2 years, neither of us pay child maintenance to the other and there will be no financial application in the divorce petition.

We would like to arrange for all future financial claims against the other to be dismissed. What would be the easiest and least costly way to achieve this? Obviously I know I could just go to a solicitor, but if we could do it ourselves that would be preferable.

There is a box to tick, as I recall, on the final application when you go for the absolute. (at least when i did mine in 2004). However, you cannot stop them going to the CSA.

The courts are generally really helpful and the forms are pretty much self explanatory.

You need to get a Consent Order drafted setting out what has happened in relation to the ancillary relief (financial matters) which will dismiss all other future claims against each other. You will not be able to draft this yourselves and will need to instruct a solicitor.

If you don't do this then you run the risk of future claims.

I really don't think that is the case, MOSagain. When I did mine (granted I was - am - a solicitor) there was a standard form of consent order and this was one of the boxes to tick. I just cannot recall when, exactly, that happened - it was between nisi and absolute, i think.

There are lots of online forms that help as well. The consent order itself is really straightforward.

A solicitor for this will charge quite a bit and they won't just draft what you tell them, they will want to go back over everything to run up their bill as conveyancing is a bit quiet nowadays discharge their duty of care. Again, I say that as a solicitor.

oh ok sleepy I only worked as a family lawyer for 10 years, I clearly know fuck all! I say that as a family lawyer who has seen numerous clients come unstuck when they've done their own divorces and have not bothered resolving the finances properly and wonder why it comes back and bites them in the arse a few years later.

The reason a specialist family lawyer will charge 'quite a bit' is to ensure that the client is protected and won't have claims made against them in the future.

Part of me says I should bow to your greater knowledge, except that I have done it myself and I know lots of others that have too - in fact very few people use lawyers for this. MOS - you see the ones who unravel, not the gamut as the rest of us do.

I got an order, with no specialist input, dismissing all claims that either of us had against the other. I did it with the help and support of the court. I filled in the forms, went to the court, and the clerk said she would get the DJ to check it, which he did, and it was done. The boxes to tick included whether I wanted all claims dismissed, only claims on capital, did I want to include the pension, etc.

The courts are genuinely helpful to litigants in person, (whereas they enjoy tormenting lawyers) and since the OP is aware of the need for an order dismissing all claims, you are, in effect, paying for about 50 words of standard wording plus all the consultation time that the lawyer is obliged to insist upon because they have their own professional indemnity insurance to think of, and they are not allowed to just draft the agreement, they have to check all the circumstances and advise on whether the client is doing the right thing. I'm guessing two hours or thereabouts as a minimum? Probably a £500 bill with the VAT. And you won't find a lawyer to advise both of them, so they really should both have one, etc...

I understand that with your lawyer's hat on you find it hard to accept that it can be done without a lawyer, but with mine still firmly in place, I can. In many ways you are looking at this the way Health and Safety is looked at sometimes. If you only look at the risks, you would never do anything. Crossing a road is a risk. Getting on a plane is a risk. Meeting someone new is a risk. Using an electric hairdryer is a risk. Eating a cake or a sandwich or an apple is a risk. They are all risks, and they all bring benefits. We balance them out and make decisions.

Yes, there is a risk - but it is very small because this is very straightforward and the courts do seek to ensure that the intentions of litigants in person are put into effect. The benefit is that you save money that is probably better spent elsewhere, and you don't upset the applecart of a hitherto amicable divorce. Equally there is a risk that a lawyer would get it wrong - and then you are in the hands of another to sort that out, and so on. You can't eliminate risk, you can only weigh it and balance it against what you gain.

As another recently retired family lawyer of 25 years, I'd be interested to see what this form is, Sleepy. I'm wondering whether you are referring to the prayer in the petition?

The only way in which future claims can be dismissed is by a court order, usually made by consent.

The claims to be dismissed are all claims arising from the marriage, including claims under the Matrimonial Causes Act 1973. Depending on the individual circumstances of the client, there will often also be dismissal of all claims against one anothers' estate under the Inheritance (Provision for Family and Dependents) Act 1975.

The thing is, the wording of the dismissal section depends on what has gone before, so as not to be contradictory. So you may have an agreement that the husband will pay spousal maintenance until the youngest child is 12, for example, at which point it is revoked, with a Section 2 (1) bar on any future claims. If the wording isnt done correctly, it will be rejected by the court.

s21 bar, I mean.

No, I remember the prayer in the petition very well.

It was a court order. In this case, as in mine, no orders were to be made for any maintenance, we had already divided the property between us, and all that either of us wanted was an order that ensured that financially there was nothing left between us. The dismissal under the Inheritance etc Act is also there - i am looking at the order right now!

Yes, I'm sure it was a court order Sleepy; I was under the impression that you were talking about some sort of pro-forma which the court dishes out to LIPs.

Crossed wires, I think!

As I recall (and this was almost 10 years back) they sent us a box ticking thing to fill in and return with (I think) the nisi, and we each sent it back saying what we wanted (this was Trowbridge County Court). I then went to Court and actually got the order, in rather as hurry as XH wanted to get a licence to get married again as he had booked his wedding (!) and I acted as his agent to go to court and speed things up as I was frankly glad to get shot of him, but that's a whole 'nuther story.

I didn't go before the DJ, just to the court office. I got the order same day.

The order begins: "BY CONSENT it is ordered that..." and then expressly lists the ancillary relief claims, for periodic payments, property adjustment, lump sum, pensions, and inheritance, all to "be and are hereby dismissed". I imagine that the actual names of the orders may have changed in the last few years but it was really straightforward.

I was a litigator, but in the High Court, for many years, and didn't mention it to the staff, and they were incredibly helpful - I would give them 10/10 for service.

My DH (now) got divorced before I met him, no children, short marriage - 2 years, and a done deal when they first approached the lawyers, by which he paid her £27,500 and no maintenance or property adjustments at all but all claims dismissed, and got charged £3,500 for it. She paid her own costs, that was just his.

away, it is what happened. If OP wants to spend money, get a firm price upfront for the draft.

I do clean break consent orders for a fixed fee of £500. That's without negotiation. I'm sure sleepy is telling the truth, and I don't read MOS's posts to be implying that she's not telling the truth, but there's more to it than just drawing up the order. The statement of information form has got more complex since sleepy got divorced (sleepy - did you complete one?).
I've never known a court to make a consent order with a litigant in person without calling the parties in for a chat at a hearing.

Where I used to practice there was a tale of one if the judges taking his wife along with a consent order, divorce petition, and nisi application and telling the hapless clerk to get the other judge along and approve it all. Needless to say he refused.

Never in 20 years have I heard of a court turning round an order that quick, or even drafting the order for you. Some courts give out key cards with tick boxes. But you're taking risks filling one of those in without knowing what you're doing. Still, I'd get more money clearing up a badly drafted order rather than making it sound in the first place.

Thanks for all the comments. Would this have to be done at the time of divorce or could it be done at some later point?

There is absolutely no negotiation required. Our finances have always been separate and we always contributed equally throughout our marriage. There is no question of spousal maintenance and since our separation we financially support ourselves and our DC. If there are any costs for DC, they are equally shared.

You can apply for a consent order at any time after decree nisi. The rules provide that you must file a draft order.

Can it be filed after the absolute?

Yes. Indeed it doesn't become effective until absolute.

So I could apply for the Consent Order 6 months or a year after we got divorced?

Any time, though a respondent can't apply for financial orders after remarriage.