Some couples may have drifted apart but having to spend so much time together may have found that they have overcome the problems that they had previously and rekindled their love for each other. Others however may feel that they have no choice but to stay in what is perhaps a toxic relationship because they perhaps feel they have nowhere to go to or may have lost their source of income and are no longer able to be financially independent. It may however be wise for couples to think about their financial situation if they do decide to reconcile.

So what is my position if I reconcile with my ex-spouse?

This will depend on whether or not you have a Financial Remedy Order in place to confirm the financial settlement reached between you and your ex-spouse when you originally separated.

I don’t have a Financial Remedy Order

If you do not have a Financial Remedy Order confirming any financial settlement then financial claims are still open. Even if the divorce was concluded and you have a decree absolute the position is still the same. If you reconcile, any assets belonging to you and your ex-spouse will probably become matrimonial assets again and if you later separate either of you can make claims against those assets. This may lead to unfairness if a settlement had already been implemented but not put into the terms of a court order because your ex-spouse may then get a second bite at the cherry particularly if they have spent the assets that they retained on separation but you have not.

If you have not divorced it may be wise to have a Post-Nuptial Agreement in order to protect your assets in that situation.

I have got a Financial Remedy Order

If you are divorced and have got a Financial Remedy Order and then reconcile you will then simply be cohabitees. Any claim that you may have against the other for financial relief will be based upon normal property law. You therefore need to be very careful if you decide to purchase a property together particularly if you are putting in all or most of the deposit. It is important to ensure that you have a Declaration of Trust if the property is going to be in joint names to confirm the shares that you each hold.

It is also important to ensure that that document is drafted correctly to confirm those shares. There is no point in you each owning a 50% share in the property if you have paid your 50% in cash and your ex-spouse is paying by way of mortgage. Until he has paid all of that mortgage off he will not have made his 50% contribution and if you separated he would be given 50% of the gross value so in effect your share as opposed to his 50% taking account of the mortgage.

If the property is to be in one party’s name then you may wish to have a Cohabitation Agreement to confirm that the other will not have any financial claim against the property. A Cohabitation Agreement can also be used to protect other assets.

For more information about Pre and Post-Nuptial Agreements, Cohabitation Agreements and Declarations of Trust please speak to a member of our Family Department on freephone 0800 011 6666.