Divorce – Stay of proceedings

Cardew

A female friend - not me honestly I am a widower! – has had divorce proceedings initiated by her husband. A Conditional Order has been granted and he can apply for a Final Order in January.

The husband in his fifties is quite well off and has a good inflation linked public pension scheme; They have two school age children. The wife stayed at home looking after the children for some years and although now in employment does not have much money.

The husband has refused to discuss any financial agreement or arrangements for the children. He has declared that he will apply for the Final Order in January. To her great surprise she has discovered that there is nothing to stop him taking that course of action. 

She appreciates that she can still pursue claims against him for support/pension/children etc after they are divorced. However she believes he may well have cashed in some/all of his pension and might well disappear abroad – possibly with a girlfriend. To pursue claims against him will be extremely expensive and take years.

She has been advised that there is a procedure called ‘Stay of Divorce’ which involves filling out a Form D11 and asking a judge to prevent the issue of the Final Order until a financial/children agreement has been reached.

Researching on the internet I can find little information on that procedure. So can anyone with some legal knowledge comment if that procedure is an appropriate way to prevent the divorce being finalised.

Before anyone states the obvious, of course she should take proper legal advice – and eventually will; but she has already spent £thousands, that she can ill afford, on a solicitor who has written lots of letters that her husband has ignored.  

tightauldgit

What exactly would she hope to achieve in this way? If her worry is that he's going to spend the assets then staying the divorce won't stop him doing that. 

It seems that the quicker she applies for a financial order from the court the better. What's stopping her?

To get child maintenance she just makes a claim with CMS, has she done this already? Why not if not? 

Scorpio33

Either of them can apply for the financial order, it doesn't need to be him, so there is nothing stopping her applying now as far as I am aware?

tightauldgit

Scorpio33 said:

Either of them can apply for the financial order, it doesn't need to be him, so there is nothing stopping her applying now as far as I am aware?

Exactly this, though in my experience I found like the OP's friend that for some reason your local non-specialist solicitor seems to be reluctant to file with a court and would rather spend months/years writing meaningless and pointless letters that progress nothing. Divorce specialists on the other hand seem to be a lot more direct in making things happen.

In a case such as the OP's friend where they seem to genuinely think that assets may be dissipated and/or they may go abroad it would seem that applying for a financial order ASAP makes sense. While they have the potential to get anything spent added back to the pot down the line this isn't a given and isn't always as easy as some people think. It's not obvious to me that cashing in your pension to head overseas with your new girlfriend would be seen as dissipation of assets although you'd certainly want to make that case to a court. 

All waiting does is provide more opportunity for funds to be spent/hidden. 

As for preventing the divorce, I don't see the benefit of it. You would need to show the court that there are special circumstances that would warrant it and I don't think there really are. There's no requirement for finances to be sorted prior to a divorce being finalised and I doubt that alone would be considered sufficient grounds to get the process halted.

I'm not completely up to date on the new system but unless I'm missing something it seems like bad advice to waste time and money trying to get the divorce stayed when that effort could be used in getting a financial order.

TBagpuss

She can apply forthe finacial order now but they take a long time, it won't be dealt with my January unless they agree very quickly on terms.

She can apply for a stay - on the D11 she has to set out what she is asking the court to order and why. Saying that she wants an order to prevent the issue of a Final Order / Decree Absolute until a final financial order has been made is reasonable, particuarklely if pensions form a major part of the assets, as she would lose the right to any possible widows benefits in the even of his dying before a finacial order were made.

It is sensible for her to issue an application in relation to finances asap however as the court may be more wiilling togrant the stay where there are actual finacial proceedings in hand, so it isn't an open ended stay, and she needs to be aware that it would not prevent him drawing down money from the pension - if she thinks that's a real risk (especially if they arethe main / only asset) then she needs totalk to her solicitor about applying for a freezing injunction to prevent him from doing so