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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33324
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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My husband and I are considering a divorce. He has recently

Customer Question

My husband and I are considering a divorce. He has recently confessed to adultery, an ongoing affair. We have been married for over 10 years, no kids. A couple questions:

1. While filing and going through divorce (which can take 4-5), is it possible to have put in place, in a more speedy way, a separation agreement setting out the terms for this transitional period while waiting for divorce and also outline our intended settlement terms for the divorce. Can we get such an agreement through a solicitor quickly (without going to court).

2. Once we proceed with the divorce, if the financial terms we agree for the consent order, are not strictly 50/50 split but are more slightly more favourable for one party than the other (but we are willingly agreeing to it), will the court interfere or will it agree to what the parties are willing to settle on? What is the earliest time, the court will consider the consent order (after the decree nisi)? Or can we agree that earlier?
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
When are you planning to issue Divorce Proceedings?
Why do you feel the need to have a written agreement in place for the few months involved - do you believe that there is a risk that your ex will change his mind?
Clare
Customer: replied 2 years ago.

Hi Claire - thanks for this. We intend to start proceedings within coming weeks. Yes, I would like the agreement for piece of mind to set out the terms of our settlement both for after the divorce as well as during the interim period of 4-5 months while waiting for decree absolute. My husband wants to continue living with me in our family home during the proceedings. I dont mind so long as things remain civilised and there are some ground rules. He is out of work for last 5 months after redundancy (though fully able to work and has good earning potential) so he will be supported through our joint savings and my income in this interim period. I would like to set in the agreement some ceiling amounts that he can spend in that time (as in the past he has spent our money on funding trips for him and the other woman). So, what is the best way to seal such an agreement quickly? For after the divorce, we have agreed how to split our assets. Roughly, 60% for me and 40% for him. Can we include that in the separation agreement too? Thanks for your advice.

Expert:  Clare replied 2 years ago.
Hi
What will happen to the house?
Clare
Customer: replied 2 years ago.

The plan is that I keep it. There is a mortgage on it and some equity. Instead, he keeps a bigger share of our cash savings and his pension fund.

Expert:  Clare replied 2 years ago.
Hi
May I ask why your husband does not move out immediately with the agreed savings?
Clare
Customer: replied 2 years ago.

He would prefer to stay as easier, more comfortable then him going finding rented accommodation. The cost of renting will also reduce our joint savings and ultimately reduce a bit each of our shares. I have told him though that if living together becomes akward we would need to have him move out.

Expert:  Clare replied 2 years ago.
Hi
I am sorry - what I meant was is there any reason to delay the financial division rather than go straight for it
Clare
Customer: replied 2 years ago.

The financial settlement (consent order) will not be enforcable until after decree absolute, right? And the court wont even look at the consent order until decree nisi? So, how can we divide right now? And hence, should / can we have an agreement in the meantime? My original question above was also about the split not being 50/50 and whether the court will object / have questions if it is 60/40 for example. I have given a lot of information above and will be grateful for some answers.

Expert:  Clare replied 2 years ago.
Hi
The simple fact is that you can go ahead with dividing the assets as soon as you wish - there is no need to wait until the Divorce has been started let alone finished.
In terms of it being "enforceable" if you do not both agree then it will not actually happen anyway - so that is s not actually relevant and it would be much more sensible to deal with the finances immediately rather than putting yourselves through the stress of waiting when there is no need to do so
The simplest way forward is to get the divorce underway at the same time as you are dividing the finances and have the Consent Order drawn up and signed ready for submission once the Decree Nisi has been granted.
It is highly unlikely that the court will refuse an order based on a 60/40 split - and even if the court did that doe snot stop you from proceeding on that basis - it just means that one of you COULD potentially make an application against the other in the future
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

Thanks, Claire. Would the fact that he is not working (capable /good earning potential) make me more vulnerable (in terms of paying him maintence or larger lump sum) should heo down that route? It seems a bit unfair for me to be penalized for being the one working. Should I mention in my petition relevant facts - him spending our joint money to fund travel and gifts for her, his intention to remarry, etc. Would that help me in case he goes down a route of not sticking to our current verbal understanding / agreement we have to about 60/40 split? Thanks.

Expert:  Clare replied 2 years ago.
Hi
There is no problem because he is temporarily out of work - and whilst you can mention those matters in his petition there is no need to do so
Clare

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