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plclegal
plclegal, Barrister
Category: Family Law
Satisfied Customers: 9054
Experience:  Barrister at law
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Morning, I want to file for a divorce but my husband is

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Morning, I want to file for a divorce but my husband is threatening to take our boy away. I have European passport and settled status in the UK. I've lived here for 23 years. Our boy has a British passport and American passport. His father has American passport. We own a property in London (50/50) and have been married for 5 years. The reason for a divorce is alcoholism and emotional abuse. Is this something he is able to do?? Thanks.
JA: Was the property purchased during the marriage?
Customer: It was purchased when we were engaged.
JA: Were any marital funds used for the mortgage or property improvements?
Customer: It was my husband's money
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I'm not sure what they need to know at this stage

Hello and thank you for contacting JustAnswer.

My name is ***** ***** I specialise in family law. I’m happy to assist you today and I appreciate that is is important that you find a resolution as soon as possible.

Please note that our discussions on this site are for general information purposes and do not create a lawyer-client relationship. It is always recommended that you consult with a local solicitor for specific legal information.

I'll do my best to resolve this for you, please give me time to review your question and I will revert back to you shortly.

Please bear in mind though that this is an email service and not live chat and therefore I may not respond immediately.

Can you tell me how old your boy is please?

Does your husband agree to the idea of a divorce or not?

Customer: replied 15 days ago.
Our boy is turning 5 in July and the husband doesn’t agree to a divorce.
Customer: replied 15 days ago.
I’m not able to switch to a call I’m afraid as I’m at home with my husband.

I understand, I'll type a response, please give me time to do so.

Customer: replied 15 days ago.
Thank you

Your husband does not have to agree to the divorce, as you can make a sole application. The form to do so is here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1064336/D8_0422_save.pdf

The form itself is quite long but fairly self explanatory. You don't need to attend mediation before sending in this form to the court.

This is a separate issue legally from the decision about who your child lives with. The divorce judge won't decide this, it is a separate application to make to the court.

It's also a separate application for the financial arrangements, though you tick on the divorce application form that you are seeking a financial order, you still have to make that application. As in relation to child arrangements, attendance at a MIAM is compulsory before submitting the financial application.

PREVENTING ABDUCTION TO THE USA

You can make a prohibited steps order application on an urgent basis to prevent him being removed from your care and the UK if this is a real threat.

The prohibited steps order application should be made on the c100 form (please see below).

With the prohibited steps order in place, you can then follow the normal process for trying to sort out the child arrangements, safe in the knowledge that your son can't be removed from the UK without your consent.

I'll set this process out now.

CHILD ARRANGEMENTS

For contact and living arrangements, if at all possible, the parents’ best option is to try to agree arrangements between themselves, with the help of a parenting plan if necessary. A Cafcass leaflet and template for a parenting plan can be found here: https://www.cafcass.gov.uk/download/4365

If that doesn’t work, then the person who wants to go to court has to attend a MIAM, and if the other party engages, then mediation has to be tried before going to court. It is a legal requirement for anyone wanting to apply to court to attend a MIAM (mediation information and assessment meeting) prior to making their application to court. There are some exemptions to the need to attend, and those exemptions can be found listed on the court application form, so any applicant should check to see if they meet one of those exemptions. But for most parties, mediation will be required, and mediation can overall be the far cheaper and preferable way to resolve issues. The link to find a mediator is below.

If both the above fail, then court is the final resort. It really ought to be the final option and only used if absolutely no agreement can be reached. This is because court, frankly, tends to bring out the worst in people and often allegations come up which would not have been mentioned but for the court proceedings. Of course, if there is abuse in the relationship, court is the correct method of resolving issues as mediation will not be suitable.

The application for child arrangements (in addition to prohibited steps) is made on a C100, which is available in paper form and online, and the court fee is £232. If the applicant is on benefits/low income they may be eligible for fee remission and should see the link below for help with that.

The paper C100 application is here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/946762/c100-eng.pdf

The online C100 is here: https://www.gov.uk/looking-after-children-divorce/apply-for-court-order

Parties can find a mediator here: www.familymediationcouncil.org.uk

Fee remission assistance can be completed online, the system will give a code that is placed on the application form, if eligible. See here: https://www.gov.uk/get-help-with-court-fees

The applicant MUST attend the MIAM before applying as the mediator has to sign the C100 form - this is a legal requirement before they can apply to court.

FINANCIAL ORDER APPLICATION

A financial consent order is a legal order made by the court. It makes the financial agreement that you have already reached legally binding for you both. This order may lay out what will happen to your property, pensions or other assets when you divorce. It can also detail how any ongoing payments may work between you.

DO I NEED A CONSENT ORDER?

It is a common misconception that your finances are sorted out by the court as part of your divorce proceedings. It is quite possible to get divorced without agreeing any of the financial arrangements – although that is not recommended.

So you don’t have to get a consent order, but we recommend them for every divorce, whether you are dividing up any assets or not. This is because they can give you both a clean break, protecting your future income.

WHAT IS A CLEAN-BREAK CONSENT ORDER?

A clean-break consent order will cut any ongoing ties between you financially. Without such an order, either one of you could make a claim against the other, even many years after your divorce is finalised. Imagine you were to win the lottery, or grow a business that becomes a success. Without a clean-break consent order, your future wealth could be claimed by your ex-spouse, even many years after your divorce has been finalised.

But a clean-break consent order does not just protect you if you win the lottery. It also makes any financial agreement you have reached legally binding, so you both have to do what you have agreed and it makes your agreement irrevocable, so neither of you can change your mind in future. In a nutshell, it provides peace of mind and an ongoing insurance against any future claims on your assets for both of you.

HOW DO I GET A CONSENT ORDER?

To get a consent order, you need to have agreed your financial arrangements with your spouse. You then invite the court to accept your agreement – and they can decline to do so. There are court fees of £50 to submit an application, but your consent order should be drafted by a solicitor, experienced in family law. In theory you could draft one yourselves, but it may be declined or not cover you both as you want, especially if it is not worded correctly.

You can only ask the court to approve a consent order, once the court have agreed that you can get divorced, i.e. once you decree nisi in has been pronounced.

The consent order then comes into effect once the final stage of your divorce, the decree absolute, is pronounced by the court.

DO I GET A CONSENT ORDER AUTOMATICALLY WITH MY DIVORCE?

No. You need to make a separate application for the consent order. And you can get divorced without one, though this is not recommended. Many people believe a consent order is included in their solicitors’ fixed fee divorce fee, but they rarely are so always check. You need to apply for the consent order when you get to the decree nisi stage of your divorce.

WE HAVE NO FINANCIAL ASSETS. DO I STILL NEED A CONSENT ORDER?

Yes. Well you should definitely consider getting a clean break consent order even with no assets. A clean-break consent order will ensure that future claims against each other are dismissed between you both. Without one you will always be open to having a future claim made against you.

HOW DO WE AGREE A CONSENT ORDER?

You can agree the content of a consent order between yourselves, or through divorce negotiation, family mediation or by solicitor-led negotiation. If you cannot agree you can ask the court to make a decision for you, although this can get very expensive. If you both agree you can ask for an independent barrister review to tell you what is likely to happen at court for your specific case.

DOES WHAT WE AGREE ON THE FINANCES DEPEND ON WHO WAS TO BLAME FOR THE DIVORCE?

No. Except in rare circumstances, such as murder or gambling addiction, the grounds for the divorce and who was to blame for its breakdown do not make any difference to the division of assets. They are treated as separate issues. Who petitions for the divorce, or who is to blame for the divorce will not be rewarded or punished for their behaviour, however exemplary or poor it was, during or after the marriage.

WHAT CAN WE DO IF WE CANNOT AGREE ON THE FINANCES?

If you can’t agree you can file an application to the court to make a financial order for your case. Before doing so, you may like to consider family mediation, negotiation or a barrister review, where an independent family law barrister will write a report on what the law is, how it applies to your case and what would be a likely outcome if you went to court.

If you use a solicitor or barrister to represent you at court, the costs of the three hearings required to make an order will take on average 11.5 months and set you back £20,000 each. Although costs can escalate quickly. So it is quicker, less costly and less stressful if you can reach agreement outside of court.

WILL THE COURT ALWAYS AGREE OUR CONSENT ORDER?

No. The court will not just rubber stamp your order as they may disagree with it. They are making it into a legal order, so they need to understand the arrangements and agree that it is fair. Ideally they will want to see that you have taken legal advice on the order.

The court are unlikely to tell you what to do if they do not agree with your order. They are more likely to ask questions on it or ask you to discuss a particular area of the order again.

WHAT DO WE NEED TO SEND TO THE COURT IN ORDER TO GET A CONSENT ORDER?

You need to have made a financial disclosure. A financial disclosure can be done between yourselves, through mediation or on Form E’s.

You can both use Form E’s which are the court disclosure documents and signed by both parties. You need to be accurate and honest on your financial disclosure, otherwise any consent order that is sealed by the court can be ‘set aside’ at a later date. You may also be in contempt of court if you are dishonest about your financial situation and if you are deliberately untruthful, you could be committing the criminal act of fraud.

The court will see a high-level snapshot of your financial situation called a statement in support of a consent order which is completed on a Form D81. This shows the total amount of any properties you own, any assets and liabilities and your private pension values.

DO WE HAVE TO COMPLETE A FULL FINANCIAL DISCLOSURE IF WE ARE JUST KEEPING WHAT WE CURRENTLY OWN?

You do not need to complete a full financial disclosure to get a consent order, but it is recommended that you do so. In order to get an agreement, as a minimum the court need the statement in support so you need to disclose the full amount of equity in all your properties, your total assets (such as savings, ISA’s, cars, money owed to you); total liabilities excluding any mortgages and any pensions including SIPPS. You cannot get a consent order without this information being disclosed and agreed between you.

But you do not in theory have to provide a breakdown of what makes up these asset totals.

IS CHILD MAINTENANCE INCLUDED IN A CONSENT ORDER?

Child maintenance can be included in a consent order, but the consent order only makes the child maintenance legally binding for a period of 12 months. After this time, the Child Maintenance Service (CMS) has jurisdiction for the enforcement of child maintenance, including calculating the amount due.

Many people include child maintenance in a consent order to allow them to show it as proof of income to help them get a mortgage or perhaps a rental agreement.

However after one year, jurisdiction is transferred to the CMS, who will encourage you to make a family-based arrangement.

If you cannot agree between you, then you can ask them to make a calculation of what should be paid, which will then become the amount legally required, even if it is a different value to the amount agreed in the consent order.

Remember, child maintenance is a different area of family law to spousal maintenance. Even though both can involve monthly payments from one party to the other, they are treated very differently under the law. It’s a complicated area and we always recommend independent legal advice on this subject. Sometimes child maintenance and spousal maintenance can be combined together into a global maintenance payment.

CAN I GET A CLEAN BREAK IF WE AGREE TO SPOUSAL MAINTENANCE?

You cannot usually get a clean break if you agree to ongoing spousal maintenance. An ongoing spousal maintenance agreement means that either party can request the amount is increased or decreased as circumstances change. One party can also ask that the forthcoming spousal maintenance is monetised into a lump sum – for example if the party paying the spousal maintenance comes into a large sum of money.

In some cases the amount of spousal maintenance agreed is paid as a lump sum upfront and in such situations, this does allow for a clean break.

Some divorcing couples agree a nominal spousal maintenance agreement. This is where an order is made for payment of £1 per annum (not usually physically paid), which allows the amount to be increased under a spousal maintenance order should the family situation change dramatically – for example a child needs additional support. It is not possible to get a clean break consent order with a nominal maintenance order.

CAN I GET A CONSENT ORDER AFTER WE HAVE DIVORCED?

Yes you can get a consent order at any stage after a divorce. Whilst your financial arrangements should always be finalised before you Decree Absolute, you can still agree a consent order after your divorce has been finalised.

Remember, you can make a claim against your ex-spouse at any point after the divorce, unless you have agreed a clean-break consent order.

CAN A CONSENT ORDER BE ENFORCED?

Yes consent orders can be enforced through the courts. If your ex-spouse does not carry out what has been agreed in your consent order, the courts have strong powers to make sure the law is stuck to.

Before doing so, you should give them the opportunity to put the situation right. You may like to consider family mediation, especially if the issue is regarding ongoing spousal maintenance. The person paying maintenance may have a good reason why they cannot continue paying, for example if they have been made redundant, or their business has ceased trading.

To enforce an order you need to complete a form D11. If you are successful in your claim, then the party who owes the money will usually be required to pay the court fee and your legal fees. It is highly recommended you seek independent legal advice before seeking to enforce a consent order.

HOW MUCH DOES A CONSENT ORDER COST?

The court fees for submitting a consent order are currently £50. A solicitor will usually need to draft your order and the cost of this will vary depending on the complexity of the order, the number of re-drafts and whether it includes a pensions sharing annex. Prices range from £300 online to £3,000+ for a complicated order drafted by an experienced family lawyer.

Many solicitors offer a fixed fee to manage the divorce, but this rarely includes a consent order as well, so always check and ask for a quote specifically for a consent order. There may also be more expenses if the court ask questions on the order or seeks further clarification.

WHEN SHOULD I APPLY FOR A CONSENT ORDER?

You can only apply for a consent order once you have started the divorce process and got to the decree nisi stage. As the court can take approximately 6 months to seal an order, you may want to submit it to the court as soon as your decree nisi is pronounced.

This means you will want to have an order agreed, finalised and drafted by a solicitor in time for your decree nisi.

HOW LONG DOES A CONSENT ORDER TAKE TO BE APPROVED?

Due to a backlog at courts, they are currently taking approximately 6 months to approve a consent order. Some courts may be able to operate quicker than this and others may take longer – it all depends on how busy they are. You cannot do anything to speed up the process, but there is caselaw to show that a draft order that has been agreed would be binding on both parties, even if it is not yet sealed or your decree absolute announced.

WHAT CAN WE DO TO PROTECT OUR AGREEMENT WHILST A CONSENT ORDER IS BEING APPROVED?

Your financial agreement will not be legally binding until your consent order has been sealed by the court and your decree absolute has been finalised. If you have a mediated memorandum of understanding you can use this to show any conveyancers, mortgage companies or financial advisors of your agreed intentions, but it is not in itself legally binding.

Some clients choose to have a deed of separation drafted by a solicitor, which invites the court to approve your agreement should any issues arise before your consent order is sealed and your divorce finalised.

This again is a complicated area and most people do not wish to put their lives on hold for 18 months whilst a divorce and consent order are made legally binding.

WHY IS LEGAL ADVICE HELPFUL BEFORE FINALISING A CONSENT ORDER?

Legal advice is always something you should consider on the contents of a consent order. It shows the court that you have had the contents explained to you and ensures you are fully aware of what agreement you will be legally bound by. The court is more likely to be happy approving a consent order if both parties have had independent legal advice.

CAN I GET A CONSENT ORDER WITHOUT GETTING A DIVORCE?

No, you must be getting divorced to have a consent order. You need to have had your decree nisi granted in order to submit a consent order to the court. If you are not getting divorced, you may want to consider a separation agreement.

WHAT IS THE DIFFERENCE BETWEEN A CONSENT ORDER AND A SEPARATION AGREEMENT?

A separation agreement invites the court to agree your financial arrangements as they have been agreed when you later get divorced.

However because you are still married, the court can disregard the contents of a separation agreement or put less weight on it from a legal perspective, if your circumstances were to change considerably between the separation agreement being drafted and your divorce being finalised. For example if one of you was to receive a large sum of money, inheritance, or go bankrupt. One of you may have a child that suddenly needs additional care or you may be unable to work again. All these factors could be looked at as to why a separation agreement may be changed at a later date.

The court will also want to make sure you signed the separation agreement in goodwill and had knowledge of the consequences of the agreement. It can help to show you both have taken independent legal advice and it can help if the separation deed was drafted by a solicitor and signed and witnessed by you both.

WE DON’T HAVE ANY FINANCES TO SHARE – DO WE STILL NEED A CONSENT ORDER?

If you have no assets and no ongoing payments between you, perhaps other than the statutory child maintenance payments, then you may feel you do not need to have a consent order. You should always consider getting one however, as it is the only way to ensure a clean-break financially between you both, so that neither of you can make a claim against the other in 5, 10 or even 20 years’ time.

HOW DO WE AGREE WHAT IS IN A CONSENT ORDER?

There are several ways to agree the contents of a consent order. Bear in mind if you cannot agree and go to court, then the courts will require three hearings; take on average 11.5 months to give a final order and if you are represented by a barrister or solicitor, they will quote you in excess of £20,000 plus VAT. We never recommend going to court without representation as you are dealing with matters of law and you could end up losing out financially on more than the legal representation would have cost.

You will also need to show the court you have at least considered mediation by attending a MIAM, unless one of the 15 MIAM exemptions applies.

WHAT OPTIONS DO I HAVE TO AGREE A CONSENT ORDER?

DIY

– You can agree between yourselves what you wish to do with the finances. This can be a quick and easy way to finalise the financial arrangements on your divorce, especially if your finances are not complicated, you both fully understand the financial situation with your marriage and you have taken some independent legal advice.

Any agreement you reach can be drafted into a consent order, but we recommend using a solicitor to draft your agreement.

DIVORCE NEGOTIATION

– If you have agreed between yourselves, or you have an overall agreement but just need some help on deciding what should happened with, say, the pension arrangements, then divorce negotiation may be suitable for you.

The negotiator can work with you both together to sense check your agreement, make sure you have considered everything the court wish you to have discussed and also make sure you are dividing any assets up as cost effectively as possible.

This is great for when you have an amicable divorce and do not wish to pay for separate solicitors. You just work with the one divorce expert to finalise your agreement. It is not suitable for when you cannot agree on many of the financial arrangements – in such cases you should look at family mediation.

FAMILY MEDIATION

– Since April 2014 it is a requirement of the courts to at least consider family mediation before you can make an application for a financial order through the courts. The reason for this is it is acknowledged as a quicker, more amicable and cost-effective approach to resolving a dispute. This is particularly important where families are involved.

The family mediator will meet you individually at first, before asking you to make a financial disclosure. The disclosure can be completed on Form E’s.

The mediator will then take you through a mediation process to help you both agree:

What has been disclosed

What assets are of the marriage

How those assets should be divided up fairly

Whether there are any ongoing payments to be made between you

If so, how much, for how long and what are the factors to change the payment

What are the timescales for any transfer of assets and who will cover the costs of any transfer?

It is recommended to take legal advice alongside the mediation and you can ask questions of the disclosure and ask for any proofs required – the same as if you were to go to court.

USE YOUR OWN SOLICITORS

You can use solicitors to discuss the disclosure, agree the division of assets and any ongoing maintenance. If you are unable to agree, your solicitor should be suggesting mediation as a possible alternative. It is recommended to use a Resolution accredited solicitor to help with your case as they have signed up to try to reduce conflict as part of the negotiations. Bear in mind that your solicitor is legally obligated to act in your best interests, and your spouse’s solicitor has the same duty of care to them. This can mean that your legal positions are set far apart and can become entrenched. If you are unable to agree through solicitors or mediation you may like one final attempt to resolve matters outside of court by asking for an independent barrister review.

ASK AN INDEPENDENT BARRISTER

This is where you have an hour joint session with a family mediator or negotiator. They will ensure you have made a full financial disclosure, and then list the issues that need to be resolved. They will also ask you what you both would like to happen and what your needs are moving forwards.

Once the contents of the report has been agreed, the barrister will write a report back on what the law it, how it applies to your case and, if you went to court, what would a likely outcome be and why. These can prove highly beneficial in helping you to avoid the time and costs of going to court to resolve the issue – why spend £20,000 each when you have a likely answer in front of you?

You can then choose to accept the barrister review in its entirety or mediate / negotiate around it.

GO TO COURT

If you ask the court to make a financial order for you, it will not be by consent, but will still be a legally binding financial order that you must both adhere to.

HOW MUCH DOES A CONSENT ORDER COST THROUGH MEDIATION?

The cost of a consent order will vary depending on the complexity of the order, whether a pension sharing annex is required and the quantity of assets to be shared.

SUMMARY

You should always consider getting a consent order as part of your divorce. It is the only way to guarantee a clean break between you or make any agreement you have reached legally binding and enforceable. Without a consent order you could have a future claim made against you for any inheritance, business success or financial windfalls at any point, even many years after your divorce has finalised.

Remember they are not automatically part of your divorce – you have to request one.

There is quite a lot of information there - please do let me know if you have any further questions arising from this.

Customer: replied 15 days ago.
Thank you so much. A lot to read!! I’ll get back to you if any questions.At this stage, there is no way to have a normal discussion with my husband or agree on anything outside of court. The only thing I’m worried about are social services and the possibility of our boy being taken away from me. I can’t see why he would but my husband keeps threatening with this constantly.

Very happy to help. Social services will not get involved unless your son is at risk of significant harm or neglect.

This is obviously not the case! So it's an empty threat from someone who doesn't understand what they are saying.

Thank you for your enquiry today. I am happy to answer follow-up questions - please do get in touch with requests for extra information or further queries and I will do my best to help you. You can request me personally on a new question thread saving my profile as one of your preferred experts and by tagging me (@PLCLEGAL) at the start of the new thread. Best wishes, Peter.

Customer: replied 15 days ago.
Thank you very much

My pleasure.

plclegal and other Family Law Specialists are ready to help you