Divorced, or not? Lawyers explain how this can happen and what to do
As far as I know I am not divorced. I have been separated for two and a half years and live in Scotland. My husband and I are both in our late 50s.
Can my husband divorce me without me knowing? And can he ‘cash in’ his pension without me being informed? If he has done so, can I claim my share of his pension back?
Tanya Jefferies, of This is Money, replies: The short answer is yes, you can be divorced without knowing.
Since you live in Scotland, we asked an Edinburgh-based lawyer to explain how its laws apply in your case.
John M Fotheringham, a solicitor at Morton Fraser and a member of the Law Society of Scotland Family Law Sub-committee, replies to you below.
However, as your question will undoubtedly interest This is Money readers living south of the border too, we asked Lynn Cowley of Nockolds to explain the circumstances in which you can be divorced without knowing in England and Wales.
Also for readers outside Scotland, we previously covered a case where a separated partner had cashed in a pension, which explains what happens elsewhere in the UK on that issue.
John Fotheringham of Morton Fraser replies: The court rules mean that you should not be divorced without you knowing about it.
This is because you should be formally served with the divorce application by either your spouse’s solicitor or the court.
Usually the divorce application would be served on you by first class recorded delivery in the first instance. Failing this, sheriff officers will attend your property to serve the divorce application.
However, if the document is served while you are away on holiday, or to the wrong address, then there is a risk that you could be divorced without you knowing about it.
John Fotheringham: ‘The court is the worst place to reach any decision in family law – unless it’s the only place’
Another possibility (and this does happen) is that someone who is just trying to be helpful signs for the recorded delivery envelope and then forgets to tell you.
It may be possible to then have the decree of divorce cancelled, although the courts are unwilling to cancel a decree other than in very exceptional circumstances.
There is no set limit on how long you have to cancel, but time is of the essence – after all one of the parties may have remarried.
It’s important to bear in mind that in Scotland, divorce irrevocably ends your right to make a financial claim against your ex as a result of the split. In England, you can still make financial claims after a decree absolute, unless there has already been a court order settling this.
This means you could be left with no financial provision.
The bottom line is that if two years have passed and you think you are entitled to financial provision on divorce – or you want to find out for certain that you have not been divorced without knowing under any of the scenarios above – then you should take the initiative and seek urgent legal advice.
As always, a negotiated settlement is the best solution. The court is the worst place to reach any decision in family law – unless it’s the only place.
Can a separated spouse cash in a pension behind an ex’s back?
Your spouse’s pension provider does not know you that you are separated.
So, the short answer is that your separated spouse could cash in his/her pension if allowed to do so by their pension provider. The pension provider will not investigate the circumstances of the marriage as they have no duty to do so.
Again, my recommendation to anyone worried about their spouse cashing in a pension is to seek urgent legal advice.
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What are the consequences if they spend or hide the money?
The law offers limited protection to stop someone intentionally dissipating – in other words, squandering – their assets but it is small comfort once the money is gone.
The court can’t order financial provision against a spouse who has no assets to meet the payment. Even if the court does make such an order then there will be nothing for the spouse who would benefit to enforce against.
It can happen that the matrimonial property has disappeared but that the person who should make payment has other assets which are not matrimonial.
Matrimonial assets are those acquired by one or both spouses during the marriage – a home, savings, investments, pensions or a business, for example – and which as a result are regarded by law as jointly owned. Non-matrimonial assets are those acquired before or after the marriage.
An order can be enforced against non-matrimonial assets even if these assets have been left out of account in calculating the liability.
There are mechanisms to deal with spouses who intentionally hide their money. Generally it falls to the solicitors acting for a party who has concerns to investigate the other spouse’s resources. The court can assist, if required.
Does an ex have any recourse, through a divorce or otherwise?
I should say that the Sheriff Court is not a court of morals. In terms of financial provision, the court can only do what it is allowed to in terms of the Family Law (Scotland) Act 1985 and subject always to the parties’ resources.
If one party has squandered all his assets then the court will have a lot of sympathy for the party who has suffered a terrible financial disadvantage, but there will be little anyone can do to improve the situation.
How do you find out if you are divorced?
If you don’t know whether you are divorced, and therefore which court might have granted a divorce, you might be able to find out from the National Records of Scotland.
It hold records from 1 May 1984 but the information accessible there is restricted to:
* The fact that divorce/dissolution has been granted;
* The date the divorce/dissolution was granted;
* The court which granted the divorce/dissolution; and
* The names of the individuals who were divorced or whose civil partnership was dissolved.
You can order an official ‘extract’ – the legal term for a certificate granting a divorce – from the ScotlandsPeople website, which is the cheapest and quickest way to do so.
Lynn Cowley, partner at law firm Nockolds, explains the circumstances in which you could be divorced without knowing in England and Wales.
There are two obvious situations where somebody could be divorced without them knowing.
The first is where the person being divorced has effectively ‘disappeared’. There is a basis for granting divorce after five years separation without consent.
Lynn Cowley: ‘Unfortunately there is no central register of divorces’
Therefore, if a partner can prove that their other partner effectively deserted them and has disappeared for five years or more, they can ask a court to grant the divorce on that basis.
They do have to show that they have made reasonable attempts in trying to find out where their estranged partner is, and that will be put in the body of the divorce petition.
The other possibility of being divorced without knowing is for the reason of unreasonable behaviour.
Unreasonable behaviour is the only reason that does not require the person being divorced to fill the ‘acknowledgment of service’. This is a form where they or their solicitor acknowledge receipt of the petition.
However, unreasonable behaviour is a reason which does not require the person being divorced to acknowledge the divorce petition.
Genuine reasons could be because, for example they have been violent, or part of their unreasonable behaviour is that they refuse to acknowledge letters.
The other two reasons where divorce could be found, namely adultery and separation based on two years with consent, both require the person being divorced to fill in the acknowledgment of service, or get their solicitor to do it on their behalf.
Only when those forms have been completed and sent to the court can the petitioner (the person applying for divorce) make the application to the court for Decree Nisi.
However, it is possible that the person applying for divorce can tell the court that they genuinely believe the respondent has received the application but they are simply choosing to ignore it.
Then the respondent can find themselves divorced on the basis of ‘deemed service’.
It is, therefore, possible that somebody can end up being divorced in more innocent circumstances, without knowing it, if for some reason they have not received or picked up their post and their other half has managed to obtain from the court an order that deemed service has been effected.
The majority of these cases do generally apply to situations where the respondent has chosen to ignore all the post or in sad cases where they have suddenly become unwell and lost their faculty.
However, it technically could happen where there has been a genuine mix-up and/or a very determined petitioner.
Unfortunately there is no central register of divorces. It would be difficult for a person to determine whether they had been divorced without them knowing which county court dealt with the divorce.
If the applicant did not use the closest county court, that could be a time-consuming and ultimately futile process, as the record-keeping of county courts is often chaotic.
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