Divorce - consent order - unequal but agreed. Formality or subject to scrutiny?

McAnniee

Hi,

I am in the middle of the divorce process and it's fully amicable. The 'Nisi' is in the process with the courts and then we have to get the financial settlement sorted out before applying for the 'Absolute'. The divorce isn't contested at all; I have initiated it but that's basically a paperwork exercise. The grounds for divorce is 'adultery' but it's actually a natural moving on with another partner. I can't continue in a marriage with this person if they are committed to someone else as they've clearly expressed to me (but I understand the reasons).

We've agreed "privately" on a financial settlement. This is likely to appear to be a very unequal split 'on paper', but there are mutually agreed reasons for that (which I can elaborate on a bit if needed) which we are both fully in agreement with and have talked "unofficially" about that. For example, we always kept 'separate' finances and contributed about equally until a few years ago when, with the full agreement of my spouse I bought a property in my name only, with my funds (They signed the "no financial claim on the property" form fully willingly, but it wasn't a post-nup, just an "order of ??? trust deed??" that the mortgage company requires). We lived together but it was funded only by myself as my spouse gave up work then as I earned enough.

We've been married ~17 years, with no children (neither of us ever wanted children).

Would a court "rubber stamp" a very unequal arrangement if both sides have taken legal advise or is it subject to an approval process?

(Edited to add: I know "things can change" and something that was amicable previously, may be challenged later. For reasons I'd rather keep private I am 100% confident that my spouse is on-board with this and just wants it done with, as do I. I was initially tempted to take the "Divorce without financial order" route, which we could both be fully trusted with, but I want it closed off with no possibility of future partners putting on pressure, etc. And to draw a line under things. My spouse suggested proceeding with just the "no financial order" approach as I know they aren't after anything from me. But I worry! )

mgdavid

McAnniee wrote: »

Hi,

.........Would a court "rubber stamp" a very unequal arrangement if both sides have taken legal advise or is it subject to an approval process?............

Get a solicitor to draw up the financial agreement as you both agree.
While with the solicitor, ask them the question!

McAnniee

I have been dealing with a solicitor already to process the divorce paperwork (for "form filling"/"process" stuff rather than because there's anything contentious) Her assessment was we'll have to word it carefully, hence my worry.

jackieblack

It still has to be approved, but if you've come to an amicable agreement between yourselves then the judge has much more flexibility. Your agreement doesn't have to be the same as the court might have decided if they were asked to make that decision. The judge only needs to be satisfied that it is not so unequal as to be considered grossly unfair (I was told that roughly 70/30 would be the point at which questions would be asked) and to be satisfied that both parties have taken legal advice.

Our Consent Order would appear to outsiders to have been heavily in my favour, but there were a myriad of factors involved which were important and relevant to the two of us but which wouldn't have been considered had the judge had to make the decision for us.

After submitting our Consent Order the judge had two queries as to how we had reached particular figures in our agreement and also wanted confirmation that my ex-husband had taken legal advice (he had, and as we both expected he had been advised he was entitled to a larger % according to legal guidelines, but he happily exercised his right to ignore this). After answering these points the judge sealed the Consent Order with no further questions. The solicitor who drew up the CO said that the judge might want to speak with us both if he had any further concerns, but this wasn't necessary.

A year on we have remained on good terms and, even though things haven't exactly worked out for my ex-husband exactly as he thought they would, he remains happy with what we agreed and has no regrets.

Hope that helps

McAnniee

jackieblack wrote: »

It still has to be approved, but if you've come to an amicable agreement between yourselves then the judge has much more flexibility. Your agreement doesn't have to be the same as the court might have decided if they were asked to make that decision. The judge only needs to be satisfied that it is not so unequal as to be considered grossly unfair (I was told that roughly 70/30 would be the point at which questions would be asked) and to be satisfied that both parties have taken legal advice.

Our Consent Order would appear to outsiders to have been heavily in my favour, but there were a myriad of factors involved which were important and relevant to the two of us but which wouldn't have been considered had the judge had to make the decision for us.

I haven't done the exact maths but it's quite a bit more/less (depending on how you look at it!) than 70/30 - more unequal. More like 85/15 % based on my rough mental arithematic,

The crux of what I'm asking is: Can a Court order me to pay X amount? Even though my Spouse and Myself both agree it shouldn't be paid?

McAnniee

What would happen with the courts if they refused the "proposed" settlement?

Go back for a revised proposal or order a different settlement? And could I disregard (with agreement of spouse) the court's requirement?

Mojisola

McAnniee wrote: »

I am in the middle of the divorce process and it's fully amicable.

We've agreed "privately" on a financial settlement. This is likely to appear to be a very unequal split 'on paper', but there are mutually agreed reasons for that

McAnniee wrote: »

I have been dealing with a solicitor already to process the divorce paperwork (for "form filling"/"process" stuff rather than because there's anything contentious) Her assessment was we'll have to word it carefully, hence my worry.

As I see it, the court would have to feel certain that this was amicable and that there were sensible reasons for the inequality and that one spouse wasn't been pressurised into an unfair agreement.

McAnniee

Mojisola wrote: »

As I see it, the court would have to feel certain that this was amicable and that there were sensible reasons for the inequality and that one spouse wasn't been pressurised into an unfair agreement.

Hi, it sounds like you have some knowledge/experience of this @Mojisola ? What kind of thing could I, or my spouse, come up with as evidence of this (being "amicable") to feel certain if needed? Is it just dependent on a solicitor's assessment of someone's "genuineness" or something more than that?

My spouse and I could each independently answer questions consistently with someone without any prior 'agreement' or whatever, would that count?

The irony is we already had to go through the "independent questions" once becayse they were coming to this country from abroad to live so had to answer all kinds of intrusive questions!

TBagpuss

You can reduce the risk of the court rejecting the order by explaining why it is fair - there is a space on the 'Statement of Information' form for any other information, and you can set out that you kept your finances separate during the relationship, that the 2nd property was bought in your sole name and without any contribution etc. (If the box isn't large enough then you can continue on a separate bit of paper)

The Judge can't substitute a different order, they can only approve or reject the one you've agreed on. If they reject it that will usually be by way of a letter - effectively saying "the Judge queries why x is fair/reasonable" so you can then write back with an explanation.

Sometimes, particularly if the person getting the 'bad' deal doesn't have a solicitor acting for them, the Judge may require that you go to court for a short hearing, so that he or she can hear for themself that that person understands and is happy with the deal.

Lunar_Eclipse

McAnniee wrote: »

I haven't done the exact maths but it's quite a bit more/less (depending on how you look at it!) than 70/30 - more unequal. More like 85/15 % based on my rough mental arithematic,

The crux of what I'm asking is: Can a Court order me to pay X amount? Even though my Spouse and Myself both agree it shouldn't be paid?

I have no experience to provide a legally reliably informed response.

But I have to wonder why on earth the party looking at receiving c.15% would agree to this split. Unless you're talking about 15% of millions of course, where the amount is so sizeable it hardly matters.

That aside, a 17 year marriage is a reasonable length to believe that you have both contributed to it significantly, in one way or another - financials only being one component. So I like to think the courts wouldn't support such an unfair distribution.

Why are you not looking at a more equal settlement?

Lunar_Eclipse

TBagpuss wrote: »

You can reduce the risk of the court rejecting the order by explaining why it is fair - there is a space on the 'Statement of Information' form for any other information, and you can set out that you kept your finances separate during the relationship, that the 2nd property was bought in your sole name and without any contribution etc. (If the box isn't large enough then you can continue on a separate bit of paper)

Separate finances doesn't mean anything when considering the split of matrimonial assets though. 50/50 is the starting point, regardless of how you've managed your daily affairs.

Future earnings will be taken into account, so the split is often weighed more in favour of the lower earning spouse, more often than not the female party. So if this is the case AND the proposed split favours the man (assuming it's a cohabiting relationship), the judge is likely to take a very dim view of the proposal - beware!