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Separation - Declaring possessions to court

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I'm in the process of getting divorced. I've had an appointment with my solicitor just to figure out that nothing is certain (!).

As it currently stands i have separated from my wife two years ago and we are now in the process of starting an amicable divorce, for the sake of keeping things as smooth as possible. During this time I saved for a property deposit and from what i understand even if we both agree our finances are to be separate from the time we stopped living together and each one keeps its own things (she has a property abroad and kept everything in the house we lived as a couple) the court may very well over rule this decision. This affects her given the need to do valuations on the foreign property and me, as I'm in the process of acquiring a property in the UK (was also advised that even if I don't the court may axe my savings, so not much better either).

It seems that the divorce fess are just to fill up some papers (apx 1500, including court fees) so if any of us, or the court contests something, additional costs will be incurred.

I'm not quite sure, is this the way it works, or is my solicitor as clueless as we are? If we both declare our asserts and who is to keep them, can the court overrule our will?
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  • comeandgo
    comeandgo Posts: 5,753 Forumite
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    If your divorce is amicable why you going to court? You and your wife can agree anything, if one is disadvantaged then their solicitor will advise them to try for more but in the end it's what you and your wife agree on.
  • Fosterdog
    Fosterdog Posts: 4,948 Forumite
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    The court only makes the decision for you if you cannot come to an agreement yourselves. If you both say "this is how we want it split and neither of us will go after what the other has" then that is what will happen. The only time a judge gets involved is when the separating couple can't come to an agreement themselves and he/she then decides what a fair split would be under the individual circumstances of each case.
  • bbarroso
    bbarroso Posts: 103 Forumite
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    Thank you. This was my original assumption, but as part of my meeting with the solicitor she has instructed me that we need to write a declaration stating our possessions and how we wish to divide them. She also told me there is chance the court may look into this and decide if the settlement is fair or not, overruling what it should be.

    So at this point we're both more confused than before starting this, also the timescale (6...12 months) for an amicable divorce seems quite long given there are only papers needed to be filled?
  • tacpot12
    tacpot12 Posts: 8,095 Forumite
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    I don't see what is confusing about the advice you have been given. You've been told you need to write down how you are going to divide your assets. When you do this, you should be able to explain why the division is as it is. I doubt the court will rule something other than what you have agreed, providing you provide a rationale for the split, and both parties have had independent legal advice and accept the split.
    The comments I post are my personal opinion. While I try to check everything is correct before posting, I can and do make mistakes, so always try to check official information sources before relying on my posts.
  • jackieblack
    jackieblack Posts: 10,320 Forumite
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    edited 2 August 2018 at 8:18PM
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    If you want whatever you decide amicably between yourselves now to be made official and legally binding, you will need the court to approve a Consent Order, which states exactly how you have agreed to split your finances, including property/possessions, pensions, savings and any debts. You will both need to complete a basic disclosure document. Some solicitors will do the Consent Order for a fixed fee if agreement has already been reached.

    The judge will need to be satisfied that the agreement is 'fair' to both parties, but there is greater flexibility in how this is defined and the judge can approve a Consent Order that varies from the order they might make if no agreement can be made.

    I was told that the main reasons a judge might not approve the CO were that it was blatantly massively unfair to one party over the other or that the CO was insufficient/ not written in an appropriate legal manner (usually DIY documents) and/or failed to cover all aspects of the couple's finances.

    As the above poster has mentioned, the judge who approved our Consent Order wanted evidence we had both received legal advice on what we had agreed (which you are perfectly entitled to ignore) and some justification as to how and why we had reached that agreement, but did approve it after receiving those.

    Without a Consent Order, either party can apply, even years later, to change what has previously been agreed.
    With a Consent Order this can only be revoked/overturned in certain circumstances, eg if evidence emerges that one party has not been honest about their financial circumstances during the process leading to the agreement being made.

    IMO, it might cost a few £££, but why anyone would divorce without getting a Consent Order, and leaving yourself open to the ex returning in the future for another bite at the financial cherry is beyond me :huh:
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  • System
    System Posts: 178,105 Community Admin
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    I'm guessing you've told you soon-to-be ex wife about this money?
  • bbarroso
    bbarroso Posts: 103 Forumite
    edited 3 August 2018 at 1:42PM
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    Makes sense. This is our situation:

    Ever since we separated two years ago I've been saving for a property.
    I have about 20K in savings that i'm using for the purchase of the property, wholly earned and saved for after our divorce. I have also been paying an amount to help her cover for our daughter during the week, which is below the values set by the child maintenance as an incentive for her to act mindfully.

    I'll have to cover for all the costs associated with the divorce and as part of the settlement I suggest to give her a lump sum corresponding to the difference of what I should be paying for child maintenance for the period minus any amounts I paid for so far.

    The other option would be divide our finances equally, that is giver 10K. I'm not sure how the house purchase will influence, let alone the fact the final decision may take up to one year, so i'm paying off the mortgage in that time. Likewise, her house overseas is at the point of being repossessed, by... more debt. So if this happens before the divorce i will have no grounds to defend either my money or my property.

    To each his own interpretation, but it seems wrong that I've had no social life, had to pay any debts from the marriage and still have to share half of my savings to a woman that decided to break down the marriage to put another guy in our house. As far as I understand the reasons make no difference whatsoever to the judge.

    Likewise, in terms of legal advice, she can't afford a layer. Will that be another expense to me?
  • badmemory
    badmemory Posts: 7,914 Forumite
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    bbarroso wrote: »
    I have also been paying an amount to help her cover for our daughter during the week, which is below the values set by the child maintenance as an incentive for her to act mindfully.


    So I guess your marriage didn't collapse because you are controlling then. Anyone reading this will think what else is he trying to get away with. Why isn't she taking you to the CMS? Could this be why she can't afford a lawyer?
  • gingercordial
    gingercordial Posts: 1,681 Forumite
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    bbarroso wrote: »
    Makes sense. This is our situation:

    Ever since we separated two years ago I've been saving for a property.
    I have about 20K in savings that i'm using for the purchase of the property, wholly earned and saved for after our divorce. I have also been paying an amount to help her cover for our daughter during the week, which is below the values set by the child maintenance as an incentive for her to act mindfully.

    I'll have to cover for all the costs associated with the divorce and as part of the settlement I suggest to give her a lump sum corresponding to the difference of what I should be paying for child maintenance for the period minus any amounts I paid for so far.

    The other option would be divide our finances equally, that is giver 10K. I'm not sure how the house purchase will influence, let alone the fact the final decision may take up to one year, so i'm paying off the mortgage in that time. Likewise, her house overseas is at the point of being repossessed, by... more debt. So if this happens before the divorce i will have no grounds to defend either my money or my property.

    To each his own interpretation, but it seems wrong that I've had no social life, had to pay any debts from the marriage and still have to share half of my savings to a woman that decided to break down the marriage to put another guy in our house. As far as I understand the reasons make no difference whatsoever to the judge.

    Likewise, in terms of legal advice, she can't afford a layer. Will that be another expense to me?


    Last things first: if she can't afford a lawyer and in her divorce documents says that she has not taken advice, then it is entirely possible that the judge will look further into your mutually-agreed asset split.

    I did not have a lawyer for mine (it was not contentious financially - though very far from amicable personally). On the front of the clean break consent order is a declaration signed by both parties which gives their solicitor's details. As I had no solicitor I was required to sign a further declaration saying:

    "I, XXX, the Respondent confirm that I am acting in person. I have been told that I can have the opportunity of taking independent legal advice on the effect of the attached order. I do not wish to do so. I fully understand the contents."

    If your wife at this point realises she would be better off with a lawyer she can of course refuse to sign this. Presumably then a judge would look harder into things and may order a different split, or may throw it out entirely. It may be to your advantage to pay for her to have one if she wishes, rather than defend your split in front of a judge.

    The reason for the marriage breakdown is not part of a judge's consideration here, much as often the wounded party thinks it should be. The only case I've seen discussed with an actual amendment to the financial split because of truly egregious behaviour was in the case of a spouse who had hired a hitman to take out their ex and was now residing at Her Majesty's Pleasure.

    I will say that child maintenance should be an entirely separate matter and is your responsibility to your child to pay in full. Using that to control your wife's behaviour through a divorce process is pretty low.
  • Red-Squirrel_2
    Red-Squirrel_2 Posts: 4,341 Forumite
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    bbarroso wrote: »
    I have also been paying an amount to help her cover for our daughter during the week, which is below the values set by the child maintenance as an incentive for her to act mindfully.


    I’m sorry I don’t understand, why have you not been paying your full contribution to your child’s care?
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