VERY amicable split. No grounds for divorce, but both want one. Do we have to wait 2 yrs?

(52 Posts)
CuriosityKilledTheCrapTree Fri 04-Jan-13 17:57:57

XH moved out in Aug. We have sorted money, childcare/contact and have a plan for assets.

We're both in new relationships (although no-one committed adultery).

It'd be nice to get it sorted.

Should we just cite some 'hair in plughole' shit to get the job done?

(And yes - we both definitely want a divorce)

Spero Fri 04-Jan-13 18:00:55

If you can't wait 2 years, the only grounds for divorce are adultery (which is intolerable for you to accept) and unreasonable behaviour.

Be warned that some Judges won't just rubber stamp a few 'hair in plughole' type reasons and have sent petitions back to be re written - unreasonable behaviour has to be quite nasty. I have known a few 'amicable' divorces trip up when one partner was asked to sign up to examples of horrible behaviour. It is not nice to see it in black and white.

If neither of you wants to get married again any time soon, what is the big rush? Two years sep with consent is nice and neutral.

TerracottaPie Fri 04-Jan-13 18:03:30

As you're in relationships it can still be counted as adultery anyway. So that could be the less than 2 years way to do it.

Worked for me smile

(although the clean break order seemed to make it take forever to get that decree absolute)

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:08:32

Thank-you.

You're right - 2 years isn't a long time.... But I just want to move on. I also think that both of us are relying on good will and it'd be nice to make it official.

One example I can think of is that we have 10k debt on a credit card in my name. I earn more than him, so I think I should keep the debt, but also the household goods and car. I can pay the debt, but also would benefit from the goods. He wants/needs neither. He has agreed to this plan. If I keep the debt, then what if in 23 months time, he decides that actually he does want a share of the car?

He also does childcare on one day that I work - this financially is very helpful (on top of his 20% child maintenance). What if he decides that actually it's no longer convenient. I'm also nervous that if his new girlfriend starts sticking her oar in, it could all go horribly wrong.

It's all very unofficial.

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:09:21

Terracotta - did someone cite adultery despite the fact you'd 'split'?

TerracottaPie Fri 04-Jan-13 18:20:38

Yep, but it was agreed upon first. We had an amicable split too but like you didn't really want that 2 years of waiting to not be married anymore.

It was worded nicely by the solicitor! Something like 'My client is aware that you have entered into a new relationship since your mutually agreed separation and on those grounds is filing for divorce on the grounds of adultery'.

I don't think I've worded it quite right as it doesn't seem as nice as it actually was but you get the gist. DP wasn't named either so that probably helped swallow the 'adultery' part.

It is hard seeing it in black and white because it doesn't feel quite right when the new relationship didn't have anything to do with the marriage ending but I saw it as a means to an end.

Xenia Fri 04-Jan-13 18:23:44

Y0u are both committing adultery - sorry to break it to you.

So either of you can use that OR better one of you just write an unreasonable behaviour petition which will include things like did not pay enough attention, ignored my birthdays or rubbish like that. You can make one up for just about any marriage in the land as in England we basically have divorce on demand once you have been married a year.

Lots of people don't seem to realise that it is when the finances are sorted out and sealed at the court in a consent order that things are finalised, not when you reach a verbal agreement. So if you reach some consensus now but then in 2 years still not had a consent order at court and one of you wins the lottery or is earning more or fallen on hard times the needs are assessed at that point. If instead you have a "clean break" now sealed at court in a consent order then that is the end of it and much better/cleaner.

It might be hard to write a day's childcare a week into the order you and he can agree and have the court approve. Ours says as I earned 10x more that I pay the school and university costs whoever the children live with but you cannot force either parent to spend any time with the child. I suppose you could write into it that if he ceases to provide the care whilst the children are below school age then he will pay the day's cost of a nursery place for that day but that might be unusual to say and he might argue writing it down means he is prevented from earning more money and perhaps keeping a second family.

TrazzleMISTLEtoes Fri 04-Jan-13 18:24:51

You can cite adultery because you are still married to each other. To be blunt, you are both having extra-marital relations so its adultery.

Simple.

Glad you are having an amicable split though.

TrazzleMISTLEtoes Fri 04-Jan-13 18:25:18

X-post grin

susanann Fri 04-Jan-13 18:25:43

What about getting an agreement drawn up by a solicitor/mediator ? Dont know if thats possible or even viable. just a thought

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:35:44

I did realise we were both committing adultery on each other, but hadn't thought we could use it to our 'advantage'.

Xenia - It's luck that one of his days off allows me to work... I couldn't write that in to any agreement. As far as I am concerned if I keep debt and assets, he can pay 20% of his income towards his children and see them as agreed. The childcare on one day was never going to be sustainable if he changed his job. I feel that's my responsibility to sort that out.

And yes - I would much rather sort it 'as is' now, than to leave it.... His parents are rich but unhealthy. I could stand to make a rocking inheritance if I hold on, but really I'm all for the clean break <polishes halo ironically>

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:36:15

Oh and we can keep our own pensions.

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:36:57

I think seeing a solicitor and getting it finalised on grounds of adultery (worded politely) seems like a good idea actually.

Spero Fri 04-Jan-13 18:37:43

You can't just claim adultery - it has to be intolerable adultery! the fact that you are both committing it with other people might make that a difficult one to argue as you are both obviously quite tolerant of each other's adultery...

But could be worth a go. Just not sure I see the urgency. You can enter into an agreement now about your assets, as long as you both get independent legal advice, it will be hard to wiggle out of it later.

houseelfdobby Fri 04-Jan-13 18:40:48

You can just cite adultery. There is no wording in the legislation about "intolerable". You just have to have a marriage that is irretrievably broken down which it clearly is if you both have new relationships. I have seen unreasonable behaviour petitions cause all sorts of unintended hurt and trouble. Go for adultery.

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:41:55

Haha @ tolerable adultery.

The thing is, this marriage has been dead for a while. He didn't actually move out until about 18 months after we should have made it happen. It feels really drawn out to wait for that time again.

Spero Fri 04-Jan-13 18:44:22

The legislation is quite clear. Matrimonial Causes Act

Divorce on breakdown of marriage.

(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2)The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

Spero Fri 04-Jan-13 18:46:18

So you could potentiallly run into problems as it could be argued this is a case of 'tolerable adultery' if you are both at it.

Probably there would be absolutely no problem at all and you would get your petition. Or you could run into a jobsworth district judge who rejects your petition and you have to start again. Pretty slim risk I grant you.

But I still don't get why there is any rush.

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:46:22

Thank-you Spero. Genuine question... What advantage is there to waiting?

CuriosityKilledTheCrapTree Fri 04-Jan-13 18:47:15

Pressed post too soon...

Is it just that we don't have grounds and shouldn't cheat the system?

houseelfdobby Fri 04-Jan-13 18:48:03

yes, so not "intolerable adultery": finding it intolerable to live with the respondent follows naturally on from the adultery.

Spero Fri 04-Jan-13 18:49:17

You don't risk paying double costs on having to resubmit a petition that is rejected first time.
You don't run any risk of putting your signature to a legal doc that is not actually based on true facts - probably no real risk here but it would make me feel uneasy.

I get that psychologically you want this 'done and dusted' but I am not sure why this has to be so important. the relationship has died a death, you are both happy with other people. I would just wait and do two years sep with mutual agreement.

Spero Fri 04-Jan-13 18:50:20

Sorry houself, don't understand your distinction. My point was you can't just cite 'adultery' and be done with it.

TrazzleMISTLEtoes Fri 04-Jan-13 21:01:22

Er spero the adultery does not have to be "intolerable", there has to be adultery. Breathe.. And the petitioner must find it intolerable to live with the other.. 2 different things.

TrazzleMISTLEtoes Fri 04-Jan-13 21:03:35

OP. if you can show the marriage has been dead for 2 years already, that counts. It's hard though - you basically have to show you were living as 2 separate households under the same route.

I would go for the adultery.

joanofarchitrave Fri 04-Jan-13 21:06:46

I think you can be said to have tolerated the adultery if, for example, there had been adultery a while back and you'd lived together since then; you would then be unable to prove that adultery had been the fact that caused the irretrievable breakdown of your marriage, as it hadn't broken down until later.

If you decide to wait for the 2 years, get some legal advice so that you make sure you've got proof of living apart for the 2 years (can't remember exactly what you need but it's not difficult).

scaevola Fri 04-Jan-13 21:08:57

I think it means that if you separate when the adultery is discovered or shortly thereafter, then it can be cited as grounds. If you remain living together 6 months after the discovery, it can no longer be used as grounds as it will be considered as something you have tolerated.

NotMostPeople Fri 04-Jan-13 21:12:16

I divorced my ex on the grounds of unreasonable behaviour, which we was by mutual consent if that makes sense. I sat down with my solicitor and explained that ex was a workaholic who put his job above all else and the divorce went through less than a year from us splitting up. I'm not convinced that you need tot have stronger grounds ie abuse or similar.

Spero Fri 04-Jan-13 21:13:34

I interpret the statute as clearly linking the adultery and whether or not you find it tolerable. i,.e. you can't just say 'my partner committed adultery' on its own.

An interesting debate but probably of little use to the op or anyone else in this situation.

You will probably get your petition if you cite adultery... it just all seems a bit messy? Why do it if you don't need to? If it is all so amicable, why the need for 'closure' ?

I agree it would be good to nail down finances now in case of sudden lottery wins but you can sort that out now via agreement, just both get independent legal advice.

Spero Fri 04-Jan-13 21:16:52

And I agree, you will probably be fine with some vague allegations of bad behaviour but I have seen a couple of petitions batted back by a District Judge who didn't find them 'bad' enough - which was a real shame because the petition had deliberately been kept fairly neutral to try and keep the lid on an already fraught emotional situation.

Once the allegations got ramped up, the other side decided to cross petition and costs doubled. Its all ridiculous. I have no problem whatsoever with no fault divorce.

But hopefully that won't apply to you. Try to come up with some allegations you can both live with - he worked too hard, didn't pay attention to me, forgot my birthday etc, etc.

TrazzleMISTLEtoes Fri 04-Jan-13 22:24:46

Sorry, scaevola is right, unless everything has changed in the last few years... You can't divorce by citing adultery that has happened in the past but you have stayed together afterwards.

Collaborate Fri 04-Jan-13 23:05:43

Some judges used to want significant details if UB but in my local court the judges have been told to allow the mildest of behaviour allegations. What court do you practice in Spero? If your judges are still rejecting mild petitions they are very much behind the times.

CuriosityKilledTheCrapTree Sat 05-Jan-13 07:38:44

Thank you everyone. So would it make sense to draw up a financial agreement now (how? Solicitor?) and then do 2 years seperation in aug 2014?

Spero Sat 05-Jan-13 12:49:28

I have only seen four petitions rejected in about 10 years! All at PRFD. But most recent was 2010. It certainly isn't likely but it could happen and I would be wary of any solicitor who advises you can get away with some bland allegations.

Spero Sat 05-Jan-13 12:53:12

If you both go and see sols you could draw up an agreement which can take force on decree absolute. But you must both get independent legal advice if you want it to stick. And it isn't automatically binding on a court, which retains jurisdiction - but the trend of the last decade has been to accept pre and post nuptial settlements as binding,providing both parties know what they are doing and aren't put under pressure.

I think you should see a solicitor, hopefully you can sort this out in an hour or so if your affairs are relatively simple, no off shore trusts or anything like that.

Xenia Sat 05-Jan-13 13:44:45

Most people would just use unreasonable behaviour to be kinder to the partner. You could even draft the grounds together. Your lawyer sends the other the petition as a draft and the other spouse can ask for bits to be changed. It is basically divorce on demand.

Yes, get an agreed financial settlement (in our divorce we each kept our own pensions as you suggest you two might). You don't need a single court hearing and the agreed order is then put before the court who usually will just seal it unless it's totally unreasonable and then you have the clean break.

If he is happy with you keeping the debt and assets that's fine. If there is a loan on a house try to get that totally transferred to your name at the same time as it is unfair if he is stuck on the loan, has none of the benefits of the property and yet is unable to buy himself in due course another house to live in because he is stuck on your mortgage.

CuriosityKilledTheCrapTree Sat 05-Jan-13 13:53:46

Thanks everyone.

We rent. There isn't a mortgage. When I'm referring to our assets; it's the car and household furniture.

Will check back and re-read later. Thankyou.

Spero Sat 05-Jan-13 16:14:02

If you can agree, you don't need to involve a court at all. Court proceedings are only for those who cannot agree or want to protect themselves from future disagreements. If your assets are limited to just furniture and a car, don't see much risk of either of you cutting up rough in the future. just divide them now.

The only problem is as I think someone has already said, the sudden lottery win. But as you are living apart and both have new partners, probably not much risk there either.

But see a good sol and get some advice from someone who has all the info in front of them.

Xenia Sat 05-Jan-13 17:06:33

Spero, yes, but getting it sealed at court is very wise otherwise you can come back later to the other person to get more. So if she won the lottery next week or inherited £20m or he did they woudl still have claims against each other if they had not had an agreed consent order. You don't need a court hearing but it must be sealed by the court, rubber stamped by a judge. I was talking to someone this week who was separated/divorced 12 years ago and had no idea that there could still be claims against each other now as they had never bothered to finalise the divorce. Wife had been "given" the house - worth just under £1m at the time, spent about half the free equity since then so now has not enough to buy somewhere but now 12 years later wants a final divorce and to divide what they each have now, not what they had 12 years ago.

I agree it is worth getting a solicitor even if just to spend an hour drafting the divorce petition and then writing into legal language the financial consent order.

Spero Sat 05-Jan-13 22:03:30

Not sure you would still have claims against each other - if you have separated and have other partners, you don't automatically get entitled to assets acquired post separation.

Better safe than sorry I suppose but if only assets are car and furniture (£10K tops?) could be overkill.

But go see a sol and see what he/she says.

CuriosityKilledTheCrapTree Sun 06-Jan-13 22:32:46

Thanks so much for taking the time to advise me on this. I really appreciate it. I'm going to do nothing for the time being. Xh isn't really the kind of dick to start pulling dodgy stunts in 18 months time, so I guess I'll just leave well enough alone for now.

ravenAK Sun 06-Jan-13 22:43:34

Two friends of mine in similar circumstances ended up flipping a coin as to who divorced the other on grounds of adultery - both hated the idea of being the petitioner.

The dw lost the toss, asked for a divorce on the grounds of her h's adultery - her own was never mentioned by mutual agreement - & it all went through quickly & painlessly.

You could do something similar if you can agree which of you is going to divorce the other?

Xenia Mon 07-Jan-13 11:55:05

I think in Scotland it is assets at date of separation and in England at date of divorce but it is certainly worth having a sealed financial consent order as soon as possible at the time of divorce and not 10 or 12 years later. In one case a barrister paying his first wife maintenanec for 30 yeras !! had not had a clean break order and she applied to increase the amount even though he had had a new wife for years. His very first wife won and it was based on his income 30 years on. Slightly different point as they had a financial settlement of support payments, not a clean break but it is similar.

Spero Mon 07-Jan-13 13:52:57

The court looks to make a fair division of assets in ancillary relief proceedings. There is no automatic entitlement to anything. Court will look at all circumstances of the case, including whether assets were acquired while you were still living together or not. I think it very unlikely in this day and age you can pop up years down the line and start claiming maintenance or lump sums, particularly if you are both living with other people and you have no major assets anyway. This may have had more relevance when women gave up jobs/pensions etc on marriage and were left dependent for rest of their adult lives.

I agree it is better to be safe than sorry, but it doesn't look as if this is a risk for you in the circs you describe.

Collaborate Mon 07-Jan-13 14:06:10

If all you have to argue about is a car and household furniture you should be able to sort that out yourselves. If you can't reach an agreement is wouldn't be sensible for either of you to take it to court.

Xenia Mon 07-Jan-13 14:16:40

That;s true and as usually women have nothing and if the man has ah ouse even if he bought it after the divorce but the children need to be housed then even 10 years on if the finances are being sorted out that is what will happen.

I spoke to someone last week who had given the wife the only asset - house. She remortgaged and then spent loads of the equity and now rents. His argument is she had the assets at teh time of divorce and wasted them all. However if the chidlren's needs now require that they be housed even though she wasted all that money she still gets more than half of what is left now. Had they done a clean break and financial settlement 10 years ago he would not be in the position he now is in.

However I agree where people earn about the same even after having children and have about the same amount of assets then there are none of these risks - although if someone inherits or gets a massive bonus a few years down the line if there is not much other money than that and they have not settled things earlier they are at risk of losing that to the other spouse so I would think spending a bit of time getting finances sealed and stamped by the court is definitely worth it just for finality. On the other hand if your income and assets are likely to get less and less as time goes on you might well want to delay and/or if you think your ex wife who is a housewife will cohabit or remarry then hanging on until she does that is also a good tactic many go by.

CuriosityKilledTheCrapTree Wed 09-Jan-13 13:33:02

Thank you. I'm reading and thinking....

raenbow Tue 15-Jan-13 12:23:58

I am in similar situation, and have just filed for DV yesterdayI could use adultery as he has begun a relationship with someone else but he only started this after we separated ( I think while he's still married to me, that still counts but hey another difference between us!!)
Just found this list , I have highlighted the ones I think apply ( and will send him a copy) but hey I might even send him a copy and get him to pick his own!!
grin

www.justdivorce.co.uk/unreasonable-behaviour

CuriosityKilledTheCrapTree Tue 15-Jan-13 17:35:06

Thankyou - interesting site.

My first husband and I divorced on grounds of adultery on the basis that dating someone new whilst legally still married is adultery even though we were separated at the

Sorry, fight for the phone with DS1 meant pressed post too soon.

Anyway, we split up I started seeing someone else, we agreed he would divorce me on the grounds of adultery & I wouldn't contest it. We didn't have children so it was all very simple.

m5lfh Mon 27-Oct-14 12:52:29

Message deleted by MNHQ. Here's a link to our Talk Guidelines.

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