Separated, not divorced - new house

ihaveaquestionplease

Hi, I hope someone can offer some advice...

I have been separated from my husband for over a year. Very amicable split and we co parent our 12 year old daughter having her a week on/week off. 

I am looking to buy a house, but seeing as we are not yet divorced, I wondered whether he would still be entitled to half the house when we do come to divorce?

I have heard about consent orders or clean break orders - is this something I could get now, even though formal divorce proceedings are not in place?

Thank you in advance. 

pphillips

It's not as simple as just half the new house to your husband, he's entitled to a fair share of all the marital assets (including pensions).

No, you can't apply for a consent order before seeking a divorce unless you're applying for judicial separation.

sassyblue

A consent order is applied for at the same time as Decree Absolute (the final part of the divorce) so no you can’t apply for that. 

You could have a separation agreement drawn up and make sure you amend, or make, a Will.

AskAsk

yes, when the divorce proceedings take place, all assets will be taken into account for the split of assets.

TBagpuss

You can't have an order unless you start divorce proceedings, a the court can't make a free standing order.

What you could do (if you ware waiting for the new 'no fault' divorce options later this year) would be to get a separation agreement drawn up now - this kind of agreement sets out the fincial split that the two of you agree, and would normally also say that you both agree to ask the court to make an order confirming the terms of the agreement, within any later divorce proceedings. 

Such an agreement s not legally enforceable but if one of you changed you mind and tried to get a different financial settlement when you do divorce, the agreement would be evidence that the court would take into account, and the person seeking to change it would need to justify to the court why that was fair.

Another option, as you are on good terms with your ex, would be to agree that one of you starts divorce proceedings now - you'd need to base it on 'unreasonable behaviour' (unless one of you is now in a new relationship, in which case the other could divorce based on adultery)  but the examples of behaviour can be pretty mild (e.g. "I felt he was more interested in spending time with his friends than with me, this made me feel lonely and unloved" 

If you don't get something in place now, then yes, any new house will be taken into account - the court always looks t the assets as they are at the time they are making an order. Of course they are allowed to take into account things l like how long you've been separated for, and how any deposit was raised tc, but it's much safer to get an order or agreement sorted before you move on with buying a new property 

MovingForwards

When I was on the cusp of being in a position to start looking for a home, it was suggested I divorce my ex to avoid any potential issues.

Lavendyr

sassyblue said:

A consent order is applied for at the same time as Decree Absolute (the final part of the divorce) so no you can’t apply for that. 

You could have a separation agreement drawn up and make sure you amend, or make, a Will.

This isn't quite right. The best time to apply for a financial consent order is after the decree nisi and before the decree absolute. 

sassyblue

Lavendyr said:

sassyblue said:

A consent order is applied for at the same time as Decree Absolute (the final part of the divorce) so no you can’t apply for that. 

You could have a separation agreement drawn up and make sure you amend, or make, a Will.

This isn't quite right. The best time to apply for a financial consent order is after the decree nisi and before the decree absolute. 

That’s certainly the earliest you can apply and depends on whether parties have agreed the financial settlement by then. 

In all my years working for a family lawyer I can say that the only people who apply straight after Decree Nisi have barely any finances to argue over. 

Lavendyr

Really? Interesting. I guess it depends on where you end up but my understanding is that it is always better to sort out the consent order before the decree absolute. I wouldn't say it's applied for at the same time as the decree absolute though.

I do agree that it's important to make a will ASAP on separation.