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Amicable divorce but lawyers making life difficult PLEASE HELP!

(14 Posts)
Avaz Mon 17-Nov-14 23:35:31

Hi everyone
I have a rather unusual situation which I really need help with please?

This is going to be a long post as want to give a full picture here so someone can give me informed advise so I apologise in advance... Sorry.

Basically, we have been married for over 26 years, but husband left the marital home 12 years ago. (Another woman).
This was devastating at the time for me but for the sake of the children, and also because he is a really lovely person, we have worked our problems out and stayed very good friends over the years.
I still live in the marital home with the children. The home has always been in my name anyway.

Soon after he moved into his own property 12 years ago, his new girlfriend left him and he was single for many years.
Couple of years ago, go started a relationship and his new GF is now living with him.

I have been single since the separation as did not want another man in my children's lives. I now quite like being single anyway.

Over the last 12 years XH has always taken care of me financially and he is very kind and generous.
We have maintained a good family unit and he comes to our home 3-4 days a week and we still have family meals, parties, Christmas etc just as we did before so the children do not suffer because of the separation.
Things have worked really well and I really value this arrangement.

Now however, he has asked to finalise the divorce in the interest of making everything legal.

We both own own our own businesses and have assets in our own names.
The children are taken care of as there is a property in trust for them too.

He has made me an offer that he will pay off my mortgage over next 10 years and also give me a small lump sum now and pay me an allowance every month.

As I have a good income of my own I feel his offer is generous and I will always have enough to live on even when I retire. I do not want any more money from him.

We have both been to see solicitors. He has told his solicitor what he wants to do and they have got him to sign a document saying he is entering into this arrangement without any advise from them.

My solicitors however says it is simply not possible to get a divorce without a full and frank financial disclosure from us and they will not act on my behalf without this.

Our combined solicitors costs have already escalated to around £4000 and we are nowhere near filing the divorce petition!

Can someone tell me if in a case such as ours, is it possible to obtain a divorce without all this rigmarole as both parties are happy with the financial settlement please?

I feel that if I go by what my solicitor is insisting on, we will damage the lovely family relationship we have worked so hard over the years to build!
Some things are more important than money right?
What's the use anyway as a chunk of the money will go to death duties anyway when I die?

I know this is not the usual divorce case, and sorry for such a long winded post and any help I can get would be MOST welcome.

THANK YOU!!

STIDW Tue 18-Nov-14 00:40:53

It's a Catch 22 situation. YOur solicitor and the judge approving your agreement have a duty to ensure that the agreement is "fair" i.e. complies with s25 Matrimonial Causes Act 1973 and other law. To do that they both need your disclosures.

A solicitor couldn't advise properly without disclosure and could leave themselves open to claims of negligence. You need to submit a simplified disclosure to court along with a draft consent order for ratification. There is a wide spectrum of possible settlements but without proper disclosure a consent order may be challenged later making it not worth the paper it's written on.

Avaz Tue 18-Nov-14 14:02:41

Hi STIDW
Thanks so much for your help. As you say there may be a simplified version of disclosure. Is there a special form or how do we file the simplified version? Also is the simplified version really simple or should we just proceed with the Form E as requested by the solicitors.
I'm really sorry but I really didn't think it was going to be this complicated as both parties are happy with what we have and the settlement proposed!
Biting my nails to the nub at the moment. Any info whatsoever would be most welcome.
Thanks a million.

STIDW Tue 18-Nov-14 20:22:31

I think solicitors tend to use Form E or their own questionnaire to ensure nothing is missed. Form E doesn't need to be done with great accuracy when it's done voluntarily, it can be updated more accurately later for court purposes when no agreement is reached. When there is agreement is the simplified disclosure is Form D, Statement of Information for a Consent Order available to download from the Ministry of Justice website

wheresthelight Wed 19-Nov-14 19:37:27

if you are certain that you are both getting a fair deal then I suggest ditching the solicitors and doing it by yourselves. all the info is on the direct.gov website if you are uk based

STIDW Wed 19-Nov-14 22:10:47

The actual divorce isn't too complicated to DIY, but DIY is an oxymoron as far as the finances are concerned . Nearly everyone (unless they happen to be a family solicitor) needs a family solicitor to draft a ‘consent order’ in a form which is acceptable to a court. Without a court order settling finances and dismissing claims former spouses can potentially make claims against each other, or an estate if one of them dies, in the future even if they are divorced.

The direct.gov website has been superseded by www.gov.uk and even it states "You need to get a solicitor to draft a ‘consent order’ if you want to make an agreement legally binding."

https://www.gov.uk/money-property-when-relationship-ends/apply-for-consent-order

jasper Thu 20-Nov-14 18:02:51

Ditch the lawyers immediately and do it yourself. I did in a situation like yours. Me and ex completely trusted each other. Saved a fortune. Lawyers will tell you you can't do this but you bloody well can and should. Cost about 70 pounds I recall.

STIDW Thu 20-Nov-14 18:12:22

jasper, what exactly did you DIY? I'm not a solicitor but in my experience lots of people do the who do actual divorce themselves don't tie up the finances leaving themselves open to problems and significant expense later. Sometimes they use online services which aren't managed by solicitors and that also leads to difficulties and costs.

Not using a solicitor can be a false economy and in the last 15 or so years I would say on average I have come across at least one case every week when someone has been significantly financially disadvantaged because they didn't take legal advice.

jasper Fri 21-Nov-14 13:18:44

STIDW I got divorced in circumstances not dissimilar to OPs. Not online. Picked up forms from local sherif court. Filled them in. Had signature witnessed by a JP . The ONLY lawyer involvement was transfer of title deeds of house

STIDW Fri 21-Nov-14 16:56:00

I see. YOur circumstances aren't the same because you used the sheriff court and your signature was witnessed by a Justice of the Peace so you must have divorced in Scotland where the law is different. When there are no children under 16 or outstanding financial matters you can use the Simplified Divorce Procedure in Scotland.

OP's husband has signed a disclaimer saying he is saying he is entering into an agreement without any advise from his solicitor and her solicitor won't act on her behalf without a full and frank disclosure so she will be in England or Wales.

In England & Wales either spouse can potentially make financial claims against each other any time in the future even after the divorce if there is no final order settling finances on divorce. As I said above a solicitor can't advise properly and could face negligence claims if there is no financial disclosure. Also the court requires disclosure so the judge can ensure the settlement is "fair" before signing it off.

jasper Fri 21-Nov-14 19:00:41

yes I'm in Scotland. do you need solicitor to obtain final order?

STIDW Sat 22-Nov-14 00:57:32

No, in Scotland there is only one divorce decree and once they are divorced spouses can't make financial claims against each other. That's why there needs to be no outstanding financial matters to apply for divorce under the Simplified Procedure.

jasper Sat 22-Nov-14 12:50:46

sorry i meant do you need a solicitor in England and Wales to obtain final order?

babybarrister Sat 06-Dec-14 18:43:01

Message withdrawn at poster's request.

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