Deed of Separation

lilab_2

My husband has just declared what he wants from our divorce in terms of a financial settlement.

I have spoken to an emergency solicitor today, (basically because my soon to be ex has demanded money up front today with a balance when I complete on my flat purchase). She tells me that the settlement he wants won't be passed by a judge through a Consent Order as without going into the rights and wrongs of the situation, on paper he is not getting enough. He is happy with it and so am I.

She then suggested that we might be better with a Deed of Separation. I don't really understand this and how one could be approved and the other not.

Any advice would be gratefully received.

Thank you

booma_mitch

A deed of separation (or separation agreement) is usually used in cases where for some reason there will be a delay in obtaining decree nisi of divorce. Often in cases where the parties agree to divorce on the basis of two years separation. The terms of the separation agreement are then turned into a Consent Order (often drafted at the same time as the agreement) which is lodged with the court at the appropriate time. The difference between a separation agreement and a Consent Order is that a separation agreement is not legally binding. However, it is unusual for a court to disregard a separation agreement if both parties have entered into it with full disclosure and with legal advice. I get the feeling from your post that your ex doesn't have legal advice and this is probably the problem.

But, like you say, I cannot see why the solicitor suggested a separation agreement rather than a consent order. A consent order is the only sure way to get a clean break. Whilst I do not know the figures involved, it is unusal for a court to refuse to make a consent order on the basis of one party getting more than another. What usually happens is that if one (or both) parties are unrepresented the court will list a short hearing before making the consent order so that they have a chance to explain the consequences of the consent order to the unrepresented party. The judge will usually indicate that they think the party could gain more from the separation and may be settling for less than they are entitled, however, if the party insists that they are happy with the settlement it is rare for a judge to refuse. This does not mean to say that the judge would approve in your particular situation as I don't have the details.

In your case, if you are confident that the settlement isn't so unfair that the court wouldn't make the order then the way that this would usually proceed is for the agreement to be agreed in open correspondence which it is difficult for either party to then renege upon, provided they have disclosure and legal advice. This agreement would then be converted to a consent order and lodged with the court at the appropriate time if the proceedings were well underway and just waiting for decree nisi.

However, to me, the primary issue here isn't necessarily the amount of the settlement (although I may be wrong as I don't have figures), but it appears to be, if I have read this part right, that your ex is unrepresented. No judge will compell an unrepresented party to go through with an agreement without giving them an opportunity for legal advice. So what could happen in this situation is.... ex agrees in open correspondence, takes lump sum, goes to court for consent order hearing if unrepresented then says to Judge "oh actually I think I will take legal advice" and then wriggles out of the agreement. So on that basis, whilst the agreement can be recorded, it would not be wise to make any payments to ex until you have a sealed consent order in your hand.

Sorry this turned into a bit of an essay! Hope there is something helpful in there amongst the jumble!

lilab_2

Thank you booma_mitch. That's very helpful. Actually what happened is that my ex did obtain legal advice and I didn't. He turned up at the house (which is in my name and he knew I was selling) the day before completion when the removal men were due to take everything into storage. He had a letter from a solicitor telling me that I had until 5pm to tell my conveyancing solicitor not to release any funds to me but to keep them in their client account. He told me that if I gave him £20k the next day when funds came through he would call his solicitor off. So I had to do that. He now says he wants a total settlement of £35k which includes the £20k already given. I went to see an emergency solicitor who said that without going into full disclosure and in the 45 minutes time she had for me at £85, that it would be unlikely that a court would give him that small amount and me the rest. My ex is now demanding that I pay the remainder in four week's time. I asked him to wait until we had the final consent order in place so that I could legally protect myself from any further claims and from exactly the kind of scenario you describe, but he refuses and says I have to give it to him in four week's or he will go back to his solicitor and freeze everything. He knows that I am in the middle of buying a flat and that I hope to exchange in a couple of weeks time. He also knows that the money is now in my account as he didn't go ahead with the first threat of freezing the funds.

I still haven't had time to find a family law solicitor. The emergency one I saw turned the clock off when my £85 was up and virtually demanded £400 on account before I could even get my head around what she was saying, so I just settled what the 45 minute charge and left.

I think what my ex has done and is doing amounts to blackmail, but don't know what to do about it. I haven't been given a date for decree nisi yet.

mackemdave

Dont believe a solicitor that tells you that a judge wouldnt agree to a consent order

If he feels that it is onside he would bring you both to court and ask if you have both taken legal advice.If you tell him that the consent order is what you have both agreed he will sign it.All the solicitor is doing is trying to introduce conflict so that they can up their bill.Demand that the solicitor draws up the Consent Order as to what you have both agreed otherwise go to another solicitor

icelandic_queen

Lilab, take your time!! I've got a Matrimonial Agreement in place with my ex but I don"t know if it is the same thing. Basically my ex wanted half the house asap. I went and got a good family law solicitor as we have 3 kids together and he walked away with just under a third. Booma_witch is right, both of you need good legal advice, him as much as you!! Don"t be bullied by anyone, ex or solicitor into handing over any more money until all the legalities are understood by both parties!

lilab_2

Thank you mackemdave and icelandic queen. You've made me feel better. I have found another solicitor who says that the consent order won't be a problem providing my husband doesn't go back on his word. So I will go ahead with it. I've never been held to ransom before in any capacity and it is very frightening. So thank you both.

icelandic_queen

Hi Lilab, glad you feel better and hope things work out for you hun:j.

lilab_2

icelandic_queen wrote: »

Hi Lilab, glad you feel better and hope things work out for you hun:j.

Thank you I'll let you know.

mackemdave

lilab wrote: »

Thank you mackemdave and icelandic queen. You've made me feel better. I have found another solicitor who says that the consent order won't be a problem providing my husband doesn't go back on his word. So I will go ahead with it. I've never been held to ransom before in any capacity and it is very frightening. So thank you both.

I hate hearing about people being shafted by solicitors....When you get the Consent Order you should log a formal complaint with the solicitor who gave you the duff advice...

lilab_2

Thanks Mackemdave I'll do that.