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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


Divorce Rights

  • soulruler
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29 Aug 12 #352554 by soulruler
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There has recently been an important ruling from family division about the legal rights and wrongs of parties looking for a divorce.

The case in question got up to the appellate courts - which it had to to set a precedent - and was adjudicated by Lord Justice Thorpe aka God!

In this case it was a long marriage and the husband was seeking a divorce from his wife but on the Petition could not find grounds for either UB or adultery.

The wife defended his petition as she did not take the view that she wanted a divorce from him.

The judgement from Family was that they had much sympathy for the mans wife but that also they felt that he had rights to divorce and from that point his petition was allowed.

It seems to have slipped by somewhat unnoticed as it is very very important indeed.

The reason why the judge could make that judgement is that judges can depart from a statute where on reasoning they can see that the statute is somewhat flawed, the tool they use is the mischief rule so that the judge looks at the conduct that the law is supposed to either encourage or discourage.

People have as much right to divorce as they have to marry and in this day and age it is not reasonable to expect a party to stay married just because they are unwilling to make up what amount to bad mouthing the other just because they no longer want to stay married.

In Human Rights there are Rights to Marry and not to be forced into an arranged marriage.

In statute we have basically rights to divorce and not to be prejudiced (human rights again) for your sex or marital status amongst other things.

It highlights an important issue which comes up here time and time again regarding marriages of less than 1 year.

A person should be allowed to petition within a year as the purpose of the 1 year would surely be to give people a chance to think things through.

However, if you realise you have made a mistake or that you did not realise your new spouses intention or maybe you were straight into an abusive situation as soon as the ink dries on the marriage certificate (what ever does it matter as long as you don''t want to be married and don''t want to claim a new spouses assets and falsely get divorced).

I do believe that in this day and age bearing mind the weight of that precedent that we do not have to petition and give too many examples of UB just one or two and that divorce proceedings should not be held up by a court, a legal team or a litigant.

It might even have the effect of encouraging people to get married if they realised that they were not going to be penalised, harrassed and pursued if they did and then realised their mistake.

  • soulruler
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29 Aug 12 #352563 by soulruler
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There a quite a lot of posters on here who might benefit from that precedent, I am thinking of one of the new posters on here that realised just two months into marriage, having lived with his partner for 2 years previously and contributed financially to half the house costs but on marriage then realised that his wife was in huge debts and about to go bankrupt.

I am also thinking about Mrs Sadness who had a long co-habiting relationship with alot of DV involved and a short marriage at which point she realised her big mistake and wanting to escape DV and financial ruin.

In the same way that Human Rights is an overlay to all UK Statute we also have judicial discretion in Common Law to progress our UK Law.

No-one should basically be forced to stay married, whether it was a long and peaceful marriage, a short angry and deceitful one or any other length of marriage which had its ups and downs.

I do think where one party choses to Petition for divorce on false grounds, either by consealing that they are in a new relationship (which should not necessarily prejudice them in divorce) or divorcing to land others with all marital debts, or divorcing and trying to claim assets out of a trust or company maybe which involves other people or to which they are not beneficiary that this should be made clear and their misconduct pointed out.

However, why should we be forced into siting UB and finding grounds when one party is just ready to get divorced and a mud slinging party serves no good purpose other than to inflame the situation and rack up costs and make things a huge amount worse?

I think it very very relevent that on Finanical E it warns you that it is an offence to make statements which you know are false (perjury and contempt of court).

It is as crucial in family proceedings as anywhere else to be honest and truthful.

I also think that the judgement of Imerman v Tchenquiz from family basically that no decision should be made by any party in proceedings (so Judges, litigants, lawyers or third parties) is as relevent to all courts as it is to family.

The reason being that family judge went on to say that courts in other divisions such as chancery, Commercial and Queens Bench were unlikely to be as lienient on litigants (so including legal teams) as family.

For all those reasons I believe as a collective we should have more faith in UK Courts and Judges discretion than possibly we do at present.

I hope I am right.

  • Forseti
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29 Aug 12 #352568 by Forseti
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It would be useful if you could cite your source and provide the case reference.

  • soulruler
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29 Aug 12 #352569 by soulruler
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Well I tore it out of a national paper a while back and unfortunately misplaced the article but will google non fault divorce and justice thorpe and see if I can find it on the net.

  • rubytuesday
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29 Aug 12 #352570 by rubytuesday
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29 Aug 12 #352574 by soulruler
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Ah, thanks rubes I got it a bit wrong then not a non fault Petition but as close as it gets i think.

I really do believe that people should just be able to say that the marriage has broken down and do think that is an important judgement although yes I got it somewhat wrong.

Still judicial discretion and I believe that Lord Justice Thorpes sentiments and those of other judges as when you google non fault divorce quite a lot comes up.

I still stand by my view that judicial discretion is a very important way that law is progressed in the UK and this is an important precedent to site.

We are all aware, if we have hung around here long enough that it is pretty pointless defending an UB petition but only stating if you agree that the marriage has irretriveably broken down but disagree with why - if they are false allegations and their is mischief at foot of one description or another I do not think it mud slinging or inflamatory to point that out.

I also believe that it doesn''t matter whether you are Petitioner or respondent in a petition you should still be allowed to get your Absolute, if you have grounds for not wanting a divorce because of your spouses behaviour and they press ahead with attempts to get an Absolute then I think you should state that you want a divorce but do not want to be prejudiced from financial remedy because of spouses conduct.

I have to say that although I got in and petitioned very quickly when my ex was threatening me with all sorts and managed to get my divorce absolute before the final hearing I still got prejudiced by one district judge and my ex keeps making claim after claim in every court possible.

If he had merit I would totally agree with him but really I just wish he would go away and stop being so spiteful and vengful. Anyone would think that I had had an in your face affair, cut him out of our two marital businessess and that I was trying to claim his mothers pension and forcing him to pay me a large maintence.

Bring on less contentious petitions where they have merit, a truthful petition and reasons where their is fraud or abuse and a better understanding that no one is perfect and we all make mistakes.

I am beginning to realise that just getting married was my worst decision, actually as I wanted to be married for my children and our security - Mum blames herself for that as she insisted that I got married - nearly didn''t but if I hadn''t he wouldn''t basically be able to sort of force me to be married to him since divorce.

I would love to move on but at present am stuck in a litigation post divorce hell. I hope I am right about imerman v tchenquiz - it was this site and the worries about search orders and anton pillars and how that might disadvantage woman that put me onto that precedent.

Weird really as my ex has never needed to even think about an anton pillar (I sort of wish one was ordered for his disclosures - non disclosures).

Oh well history now.

  • rubytuesday
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29 Aug 12 #352577 by rubytuesday
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Some of the reasons used as UB in this case were thowing out organic ham bought for sandwiches, and removing the fuse from the washing machine.

She claimed that they "really, really liked each other as people", and that the marriage was not irretrievably broken down.

(Must remember to not throw out any ham or other sandwich fillings bought for my OH''s lunch.....)

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