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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.


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Split of finances & speedin up decree absolute

  • Spurs2008
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20 Dec 07 #9329 by Spurs2008
Topic started by Spurs2008
I'm sure this question has been asked numerous times and each situation is different but I could really do with some guidance. Apologies in advance for the biography. The circumstances are:
My partner separated from his wife 3 years ago.
The Decree Nisi came through in June last year.....still waiting for the Decree Absolute as the ex wants the financials sorted first on advice from her soclictor. IS THERE ANYTHING MY PARTNER CAN DO TO SPEED UP THE PROCESS?

The ex-wife is on legal aid and thinks all the work on behalf of the solictors is free (she's been ill advised)and because she is living in the marital home with the kids 8 & 4 yrs old, doesn't see the urgency in bringing closure.

A 65/35 split in the ex-wife's favour was agreed in mediation with the proviso my partner was taken off the mortgage and made a charge. The mortgage lender understandably will not permit this as the ex doesn't work, is on benefits and the interest on the mortgage paid by the state. THERE IS A £100K+ EQUITY IN THE HOUSE, COULD THE EX BE FORCED TO SELL NOW OR, IS MY PARTNER FINANCIALLY TIED TO HIS EX FOR A MINIMUM 12 YRS WITHOUT THE OPTION TO BUY A HOUSE OF HIS OWN? AND IS THERE A CHANCE OF A FAIRER SPLIT OF 50/50?

  • Vail
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20 Dec 07 #9331 by Vail
Reply from Vail
Spurs,

You're right, your partner's x has been ill-advised from a legal point of view, but in dragging the process out she can wear your partner and you down. People wear at different rates so there may be some disagreement between the two of you ahead, beware.

Fairness is a delicate and multi-faceted jewel. Everyone wants it but when viewed from various angles it appears different. It is very difficult to be truly fair.

A 65-35 split of capital assets could very well be fair, given the children's ages and the fact your partner has you - but it needs to be viewed together with spousal maintenance, pension arrangements and the x's income.

The FMH could be ordered to be sold but only on the basis of providing adequate housing for the children. Your partner may very well be left unable to buy a property because of his lack of capital - if that's the only way his children are going to remain with a roof over their head.

It is quite possible to speed up the divorce if you and your partner want to marry asap for say religious reasons and therefore apply for the absolute. The x's solicitors will apply for the absolute to be denied until the finances are sorted out, your partner then goes to the court asking for directions for a timetable for actions to be performed by.

It sounds as if he has an agreement so all that needs is to be checked by solicitors and given to the court for the basis of a Consent Order.

Sorry but how the problems of the charge on the house and mortgage would be sorted out I do not know.

In any event good luck!

  • LittleMrMike
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20 Dec 07 #9335 by LittleMrMike
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A few thoughts :

1. The legal aid is certainly not free and I find it hard to believe that the wife has not been advised as to the statutory charge and ways to mitigate it. Solicitors will invariably send a legally aided client a letter explaining that legal aid is only a loan.
2. Has your partner agreed to his ex living in the FMH until the youngest child is 18 ? And is it agreed that, at this stage, the house will be sold, and the proceeds divided 65/35 in her favour ? What you say suggests this, but I would like to be sure.
3. It is usual with arrangements of this nature for the spouse out of possession of the FMH to be given a charge or some similar device to protect his'her interests. This is, of course, designed to prevent the spouse in occupation selling the house and then decamping with the money. Frankly, I would have thought it was essential to have some mechanism in place to safeguard your partner's interests ; there are a number of ways of doing this, but whatever you do, I don't think the lender has any right to object to this aspect of the matter.
4. I'm not surprised that the lender won't release your partner in the circumstances you describe, but I would at least find a specialist mortgage broker, and put your situation to him/her ; it is certainly not against the law to ask ; you never know, they might know something you don't.
5. I don't know what is holding things up ; when reading your post I had the same thought as Vail, namely to apply for the Decree Absolute yourself or threaten to do so. Just the threat might achieve the desired result.
6. You say your partner's ex does not work. Is this because she has young children, and might be expected to get a job when they are older ? If this is the case, could the question of release be revisited when the ex starts work ?

Mike 100468

  • attilladahun
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20 Dec 07 #9360 by attilladahun
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Mike's hit the nail on the head:

1. Re D/A if pension CETV has been disclosed she can hardly say she is prejudiced in in support of that argument is her own delay in having the financial agreement approved.

If there is agreement reached in mediation I would suggest solrs get their fingers out and go on the offensive and issue a summons as follows:-

" The Respondent Husband (?) seeks futher directions of the Court in an effort to save unecessary delay and additional costs and in the spirit of the "Overriding Objective" set out in the CPR.

Given the Respondent has disclosed full details of his pension and the parties have agreed a financial settlement within the framework of mediation and given the Petitioner has not invited the Court to approve the said agreement (brief details annened hereto) the Respondent seeks an order in the following terms:-

1. Permission be given to the Respondent to apply for the Decree Nisi pronounced on the [ /6/2007] to be made absolute

2. An ancilary relief final order be made by the Court in the terms annexed hereto and in the event the Petitioner fails to agree the same directions of the Court be given

3. Costs be provided for.

The basis of the Respondent's application is set out in the sworn statement attached hereto.

Estimated length of hearing: 30 minutes

NB The sworn statement has to include a statement to say that since the Decree Nisi the parties have not co habited and no further child has been born to the Wife and that despite a request in writing to the Petitioner's solicitors to apply for the D/A they have failed to do so and given the fact the parties have agreed financial matters in principle within mediation no prejudice would be caused to the Petitioner in the Court granting to the Respondent the D/Absolute forthwith.

[Attached to the statement your solr should attach a properly drafted Minute of Agreement/Consent Order for the Court's approval which mirrors the mediation agreement.]

Now that should do the job:)

Best of luck

  • attilladahun
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20 Dec 07 #9363 by attilladahun
Reply from attilladahun
Mike's hit the nail on the head:

1. Re D/A if pension CETV has been disclosed she can hardly say she is prejudiced in in support of that argument is her own delay in having the financial agreement approved.

If there is agreement reached in mediation I would suggest solrs get their fingers out and go on the offensive and issue a summons as follows:-

" The Respondent Husband (?) seeks futher directions of the Court in an effort to save unecessary delay and additional costs and in the spirit of the "Overriding Objective" set out in the CPR.

Given the Respondent has disclosed full details of his pension and the parties have agreed a financial settlement within the framework of mediation and given the Petitioner has not invited the Court to approve the said agreement (brief details annened hereto) the Respondent seeks an order in the following terms:-

1. Permission be given to the Respondent to apply for the Decree Nisi pronounced on the [ /6/2007] to be made absolute

2. An ancilary relief final order be made by the Court in the terms annexed hereto and in the event the Petitioner fails to agree the same directions of the Court be given

3. Costs be provided for.

The basis of the Respondent's application is set out in the sworn statement attached hereto.

Estimated length of hearing: 30 minutes

NB The sworn statement has to include a statement to say that since the Decree Nisi the parties have not co habited and no further child has been born to the Wife and that despite a request in writing to the Petitioner's solicitors to apply for the D/A they have failed to do so and given the fact the parties have agreed financial matters in principle within mediation no prejudice would be caused to the Petitioner in the Court granting to the Respondent the D/Absolute forthwith.

[Attached to the statement your solr should attach a properly drafted Minute of Agreement/Consent Order for the Court's approval which mirrors the mediation agreement.]

Now that should do the job:)

Best of luck

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