I wrongly thought I got divorced – can my wife share an inheritance?

I have just read Steve Webb’s column about a lady believing she was divorced and she in fact wasn’t. I find myself in the same position. 

A decri nisi was issued but not a decri absolute. I only discovered this when applying for my state pension and they required a copy of the absolute.

I applied to the High Court which issued the nisi and to my shock discovered an absolute wasn’t issued, despite my wife being estranged and now living in Canada.

We separated 20 years ago. I am about to inherit from an estate and have a small private pension and a full state pension.

My question is am I vulnerable to my wife claiming against my state pension and new found inheritance?

I am aware of no fault divorce laws but as a point of interest she left me and initiated the divorce proceedings 10 years ago when the nisi was granted in 2010.

We have a 24-year-old autistic son who is in charity state-funded sheltered accommodation in Canada for life, and not dependant on either of us although I send £50 a week to him.

Tanya Jefferies, of This is Money, replies: We asked a specialist lawyer to look at how you can extricate yourself from this situation.

She also explains all the stages in a divorce, so that you and other readers will know what you need to do to ensure it is final.

When it comes to sharing a state pension in a divorce, the old basic state pension and the full new state pension that was introduced in 2016 cannot be divided with an ex-spouse.

How the second state pension (or S2P) element is treated depends on when you reach state pension age. Pensionwise has more details here. 

Lisa Pepper, family lawyer at Osbornes Law, replies: When deciding a financial settlement on divorce, the court takes into account all assets and all incomes from all sources.

That includes a post separation inheritance which you would need to disclose if you are about to receive it. 

There can be successful arguments about ring-fencing, for example arguing that certain assets should not be considered part of the matrimonial pot.

This might include a post-separation inheritance, pre-marital pension contributions or an inheritance during the marriage that has not merged with other joint assets.

This, however, does not trump the needs of your spouse and she can argue they should be included if they are necessary to meet her needs. The court has the discretion to decide.

Private pensions can be shared on divorce, but how the state pension is treated is more complicated and it is best to seek legal advice.

You mentioned your 24-year-old autistic son. If there are ‘special circumstances’ (which include the fact of a child’s disability) an order can provide for the needs of a child beyond their 18th birthday.

You say, however, that he is not dependant and has accommodation for life, so therefore it is unlikely that it could be argued his needs are a factor, beyond the £50 per week you provide.

You have not mentioned whether your wife has remarried and I am presuming that she has not, since you aren’t divorced. 

What should you do now?

I recommend you take steps to sort out your divorce and financial settlement now.

There are two legal documents you need from the court. One is a decree absolute which dissolves your marriage and the other is a financial remedy order. The FRO records the financial settlement on divorce, so that it is binding on you both.

Even when you obtain the final decree on divorce, the decree absolute, and are no longer married, you and your wife’s financial claims against each other arising from your marriage live on.

You need an FRO recording a clean break, if that is what you want to try to achieve, to end all further claims.

You do not need to go to court to obtain that order.

If you have an agreement, the order and supporting documentation can be prepared by a solicitor (you and your wife need separate representation), agreed, signed and sent to the court with supporting documentation. 

How do you ensure your divorce is final?

The main stages in divorce procedure if the divorce is undefended are as follows.

1. The divorce is started by a spouse lodging a petition at court. Whoever does this is known as the petitioner.

You will have to pay a court fee of £550. Free guidance is available on the court service website but obtaining legal advice is advisable.

2. The petition is then served upon the other spouse (the respondent), who completes an acknowledgment of service form and returns it to the court.

3. The petitioner applies for decree nisi.

4. If all the documentation is acceptable to the court, the parties are sent a notice of when decree nisi is pronounced.

5. Decree nisi is pronounced at court. This is the first decree of divorce. It is from that date on that the court can make financial orders but the parties remain married.

6. Six weeks and one day afterwards, the petitioner can apply for the decree to be made absolute.

This is the final decree of divorce and means parties are no longer married and the court can make a financial remedy order binding.

7. If the petitioner does not apply for decree absolute, the respondent can apply four and a half months after the date of the decree nisi.

They must issue an application to the court and a hearing would be held should the petitioner object.