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

McAnniee

LannieDuck wrote: »

Thank you for explaining, I appreciate you were under no obligation to. Just to say that I'm not judging your reasons - if you and your spouse have come to an amicable agreement, good on you both.

...however, I do have a suspicion that such a massively disproportionate settlement will come under some scrutiny from the courts. Your spouse's eagerness for the settlement to go through will be important.

I'm happy to explain things since after all I did initiate the thread asking for advice? and have nothing to hide. :beer:

What I am concerned about primarily is whether the court can "Force" a (legally binding) settlement on us. Or can they only say "Approve" or "Reject" on a specific proposal for a consent order.

If they can't approve a settlement my (soon to be ex) H and I submit, I'd rather leave the financials "unapproved" and proceed with the decree absolute. Rather than be legally held to something that neither of us wants.

McAnniee

Actually the couple of posts above bring another question to my mind. How exactly would the court enforce a financial settlement via the consent order? For example could a CCJ (?) be put on me to pay up - or would it be up to the "receiving" spouse to apply for enforcement?

To be clear - I want to work things out amicably but I'm thinking of the "Worst Case" whereby a Court could order me to pay to my ex-H when neither of us actually want that payment to be made.

TBagpuss

No, the court can't force an order on you which neither of you wants. If you sumbi a consent order they can either approve it as it stands, or reject it (in which case they normally give some indication of why / which part they want more infomation on)
At that point you and he can chose to
- carry on with no order (in which case having a separation agreement drawn up which explicitly states that you have each taken advice, that you understand that the court rejected the oder but that you both sill whs to be bound by th tems of the order you agreed - it may give you some protection if he later decided to apply to the court).

- negotiate and agree on a different settlement, and sumbit that to the court

- either one of you could then decide to apply to the court seeking a differnt order (i.e. saying that you want the court to decide) In that case, ultimately a Juge does get to decide who gets what, but thatwould only happen if yuou or (more likely!) your husband decided that he fancied a bit more , and no longer agreed to your current settlement. The court cannot make either of you apply, they can only make a decison if one of you choses to make an application.

One you have an order in place, whether it is an order made by agreement (A consent order) or one made after a contested hearing (i.e. the Judge decideing becuase the two of you couldn't agree) the court does not automatically do anything to enforce the order. That woulde up to whchever of you wanted it enforced. So if the order said that you were to pay your husband £10,000 and you didn't pay him, he could apply to the court to enforce the order - it's up to him to pursue it. (although the court can, and probably would, order you to pay his costs if he had to enforce the order. But there is nothing which say he is required to enforce it.

But it is relatively unusual to have to enforce an order as if you have a consent order then by definition you have agred to make whatever payment is in the order.

It would be extremely unusual for a court to make an order against the will of the person benefitting from it (assuming that person had mentalcapcity, of course!)

In your cae, I think your best course of action is to make sure that the Statemwent of Information makes clear why the order, despite being very unequal, is fair (based on your previous agreements), and also to encourage your husband to see a solicitor so that he can state that he has taken advice about the deal.

amd prepare fo the fact that you might have to go to court to explin it all a second time, in person, to the Judge.

McAnniee

TBagpuss wrote: »

No, the court can't force an order on you which neither of you wants. If you sumbi a consent order they can either approve it as it stands, or reject it (in which case they normally give some indication of why / which part they want more infomation on)

THANK YOU!! for putting my mind at ease on that! My Solicitor says that they won't proceed with the Absolute until we have the Consent order in place, which I do understand is the usual sequence of doing things. (If the Solicitor refused I could always find a new Sol to do the Absolute or do it myself I suppose?!) So the worst case is wasted Court fees for considering (and rejecting) the proposal. I can deal with that.

TBagpuss wrote: »

At that point you and he can chose to
- carry on with no order (in which case having a separation agreement drawn up which explicitly states that you have each taken advice, that you understand that the court rejected the oder but that you both sill whs to be bound by th tems of the order you agreed - it may give you some protection if he later decided to apply to the court).

- negotiate and agree on a different settlement, and sumbit that to the court

- either one of you could then decide to apply to the court seeking a differnt order (i.e. saying that you want the court to decide) In that case, ultimately a Juge does get to decide who gets what, but thatwould only happen if yuou or (more likely!) your husband decided that he fancied a bit more , and no longer agreed to your current settlement. The court cannot make either of you apply, they can only make a decison if one of you choses to make an application.

We'd have to take the risk on carrying on with no order I think. As I assume it isn't right to agree to a larger amount with the tacit understanding that it won't be paid, to get it approved!

TBagpuss wrote: »

In your cae, I think your best course of action is to make sure that the Statemwent of Information makes clear why the order, despite being very unequal, is fair (based on your previous agreements), and also to encourage your husband to see a solicitor so that he can state that he has taken advice about the deal.

amd prepare fo the fact that you might have to go to court to explin it all a second time, in person, to the Judge.

Could the previous agreements be unofficial (i.e. not a post-nup or such like)?

I'm as close to 100% as I can be that my soon to be ex-H would agree with my statements about the circumstances and why he shouldn't have a claim to the increased house value and so on. But it is all just narrative and maybe a judge could conclude that he was being 'coerced' although that isn't the case?

giz15

would love to know .. did you get rid of him ? & did you get what you wanted? i was looking for advice as waiting to hear back from the courts myself but your thread was so helpful

username12345678

Interesting thread.

Have I understood correctly then that where a separating couple have agreed a division of assets that the judge subsequently feels is unfair (and rejects) then there is no way of proceeding with the divorce?

Can the judge then impose a settlement to allow the divorce to complete? Or could the parties just nod in agreement with the judges decision but carry out their own division anyway? Who checks the judges order has been complied with?

TBagpuss

No, you can divorce whether or not a financial order has been made.

It's usually recommended that you don't finalise the divorce until you have an order in place. (It can be particularly important if there are pensions involved, as it means you preserve rights to widows/widowers benefits if something happens to either of you before any order takes effect)

No-one checks if the judges order has been complied with, it is up to the parties to enforce it if the other party doesn't stick to it.

username12345678

TBagpuss wrote: »

No, you can divorce whether or not a financial order has been made.

It's usually recommended that you don't finalise the divorce until you have an order in place. (It can be particularly important if there are pensions involved, as it means you preserve rights to widows/widowers benefits if something happens to either of you before any order takes effect)

No-one checks if the judges order has been complied with, it is up to the parties to enforce it if the other party doesn't stick to it.

Thanks for the explanation - I didn't know that's how it works.

The op and spouse can just put anything in front of the judge then that looks like it might pass and just do what they were originally planning anyway.

Savvy_Sue

username12345678 wrote: »

Thanks for the explanation - I didn't know that's how it works.

The op and spouse can just put anything in front of the judge then that looks like it might pass and just do what they were originally planning anyway.

the risk with that is if one of the parties changes their mind and decides to try to enforce the actual order rather than what they were originally planning anyway ...

username12345678

Savvy_Sue wrote: »

the risk with that is if one of the parties changes their mind and decides to try to enforce the actual order rather than what they were originally planning anyway ...

Or they could just divorce without bothering a judge with a financial order.

Both are then free to re-marry and they haven't had to navigate the courts risking unwanted drawn out interference.