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Settling court order amicably but decree nisi required - advice welcomed

(13 Posts)
WeAreNotInKansasAnymore Fri 03-Mar-17 08:30:46

I hope this is in the right place, but I'd like some advice if possible. I'll see my solicitor with it at some stage.

DH and I have separated but living under the same roof, since July/Aug. I instigated it as I couldn't live with his incompetent ways. Some was financial, much around household chores and childcare. We went to Relate and I have been the driving force around the split, although he seems content with separating and offers no other alternative, apart from changing some of his household habits (I do wonder if there might be an OW but that's another story).

We'll share care of DCs 50:50 and have agreed the form. We sold our house and have found a property each to buy. From the equity, we will pay our DCs' school fees upfront to GCSE/A Level, directly to the schools rather than put into trust (would cost more). We have agreed how to divide the remaining finances.

DH went to his solicitor to set up a court order with these details. However, he was told that we have to present a decree nisi, which means starting the divorce process. It was suggested we do it ourselves online if we wish to save costs.

I had seen a divorce lawyer who drafted a letter with a set of unreasonable behaviours, should I wish it to be sent. The problem is that we want to separate in the first instance. Neither of us feels comfortable with rushing to divorce for the sake of it but we need the above order in place to protect the assets (in particular for the DCs' immediate futures) and to avoid any transparency.

What do I do?

Fadingmemory Fri 03-Mar-17 08:41:29

Do you actually have to find unreasonable behaviour? Is irretrievable breakdown not enough? (Side issue... Think very carefully about paying school fees up front in advance - some parents at my daughter's school did so and lost huge sums when the school went bust.) Difficult time for you. Good luck.

Hermonie2016 Fri 03-Mar-17 08:47:56

The risk both of you have is that whilst married the finances cannot be dismissed.If circumstances changed either one of you would have a claim on the other.

Each house you buy will still be a martial asset so any increase/improvements could be shared when you do divorce.

You could start the process since there are delays due to courts being busy and that will allow time to adjust.
I think you have to decide if the legal certainty is a higher requirement than formally ending the marriage.If there is OW then previous goodwill may evaporate!

If the school fees are the priority perhaps you can action that first so you have safety there.

Solicitors have long argued for no fault divorces as unreasonable behaviour canot cause hostility where none previously existed.

WeAreNotInKansasAnymore Fri 03-Mar-17 09:35:44

Thanks, Fadingmemory, I hadn't thought that irretrievable breakdown might be enough. I think the problem is more that we are fast-forwarding to divorce... Maybe it needs to be fast-forwarded, anyway... Yes, I thought the same about school fees - although these are public schools which are unlikely to go bust. It's still a consideration, and I thought about it from whether the DCs will still be as happy there in years to come. I think this number gives enough leaway both ways. I wanted STBXH to say that we will split fees 50:50 thereafter but he is reticient to do so. Maybe another reason to FF to divorce.

Hermonie2016 Yes, I can see this now, thank you. If we were to remain married, even with separate homes, we would have a claim against the other's house. Fine, whilst (if I am to believe him) there are no OWs or other parties, but more complicated if we were to get to that stage. I see.

It does seem that the sensible thing is to start proceedings, in that case.

OTOH maybe, as you say, maybe the legal certainty is less high than formally ending the marriage. Arghhhh how does one decide this?!

Yes, the school fees are the priority for us both. Thankfully we can agree on that, which makes it easier. I have contacted the bursars accordingly.

I'm guessing we will progress with the house moves, slightly in limbo, but to also proceed with the divorce process. Does Form E need to be completed regardless of the form the divorce takes? The unreasonable behaviours side seems subjective, but I'm sure he and I can come to some agreement...He mentioned "or adultery" which makes me wonder if he might fess up to an OW at some stage (despite having denied this to date).

Thank you for your viewpoints, this is hugely helpful.

NotJanine Fri 03-Mar-17 09:39:04

I think there is a separation order that you can have drawn up instead of a consent order, if you are not getting divorced. However, as Hermonie says above, I don't this is as final as a consent order and future claims can still be made.

Unless there is a chance you'll be getting back together, I don't see why you don't start divorce proceedings?

FYI - there is also a divorce/separation forum so you may get some more advice if you post in there smile

MilkTwoSugarsThanks Fri 03-Mar-17 09:39:54

I don't think "irretrievable breakdown" exists as grounds for divorce in the U.K. so you will need to proceed with "unreasonable behaviour". If you get your decree nisi there's no rush for decree absolute, but you may have to re-apply for nisi.

NotJanine Fri 03-Mar-17 09:46:40

Sorry didn't see your reply when I wrote mine

You don't have to complete a form E. But do need to complete D81 to accompany the consent order.

Blobby10 Fri 03-Mar-17 10:12:23

To be honest Kansas if you really aren't going to get back together (and it sounds unlikely as you have divided up all the finances and sorted separate accommodation already), why not proceed with the divorce? Its much easier to do it when there aren't others involved - plenty of people will put in their twopennorth as it is!

This is the situation my (nearly) ex and I were in when we first decided to separate - we both knew we didn't want to work hard enough to rescue the relationship so divorced sooner rather than drag it out.

WeAreNotInKansasAnymore Fri 03-Mar-17 16:58:57

Thank you for all your replies - very helpful and my mind is clearer.

NotJanine Good to know that about separation order in place of a consent order. The future claims bit is difficult. Yes, maybe it is wise to just start divorce proceedings. Thank you for advice about Form E.

MilkTwoSugarsThanks That's right, "irretrievable breakdown" is not grounds for divorce and we will need to find some unreasonable behaviours. I've since found a document with quite a few for an amicable separation. It doesn't help much that since the end of our Relate sessions, my STBXH has addressed some of his issues: alcohol and lack of childcare and help around the house. However, I think we could argue that some of his unreasonable behaviours have not been rectified, and are more permanent.

Blobby10 I've given it more thought today, and considering the point about claims, I think it makes sense to start divorce proceedings at the same time. You are right. It is easier to do whilst there are no others involved, and while I know his worth, as it were.Yes, almost exactly as your case, I don't think he wants to work it out. I am left wondering if I might consider it, should he suggest it, but (a) he hasn't suggested it and (b) it would require an accompanying personality transplant (for him grin) and so it would be unlikely we'd get together.

Gawd, it is tough.

Thanks everyone flowers

category12 Fri 03-Mar-17 17:20:37

Yep, your choices are unreasonable behaviour, adultery, 2yrs separation with consent or 5yrs separation without consent. I think there is abandonment also, not sure.

I would go ahead with the divorce as legal separation first seems like dragging it out, to me.

I don't think him changing behaviour after you decided to split should make a difference - it's still why you split. As long as you can show you are living separate lives, and assuming he doesn't defend the divorce, it should stand, surely?

Hermonie2016 Fri 03-Mar-17 17:24:43

Emotionally ending a marriage is hard but once you start the process your heart follows your head.It also helps that the ex often acts badly at some stage so you see their true colours, quite sobering!

I am surprised about him offering adultery, that would make me suspicious, but I'm cynical after so long on MN!

Only you can know if this appears to be the end of the road, some times we do grow apart rather than together.
I deeply regret my marriage ending but I couldn't stay in it as stbxh behaviour was intolerable.The sadness will always be there but it doesn't mean it was the wrong decision.

If you agree finances you can get the consent order drafted and signed off by a court, no need for financial disclosure or form Es. (That's only for us with ex's who are totally unreasonable so court is the only way)

NotJanine Fri 03-Mar-17 17:36:30

I agree that it is emotional deciding to petition for divorce. Even when you know there's no going back, it makes it all very real when you complete the form and then start getting mail from the courts with X vs Y on it.

WeAreNotInKansasAnymore Sun 05-Mar-17 20:22:47

Just wanted to add belated thanks to posters replying to this. I've really sorted my head out this weekend and think this is the best way to go.

category12 We will have to go for unreasonable behaviours. If there was/is adultery, he has not fessed up despite many chances. Seems easier to just bite the bullet rather than go for legal separation - you're right. Spending time in the same space this w/e has reminded me that many of the reasons do still hold true. Plus he doesn't seem to be contesting any of it, so we might even be able to write some of it together... (here's hoping)

Hermonie2016 Thank you. Very wise words. Yes, heart follows head. I keep them separate but it seems so fast. Yes, as you say, true colours!

He mentioned "or adultery.." as an off-the-cuff remark, but I was surprised, too. He knows I have been faithful (unless it was his way of asking if I am considering seeing someone?). He is so closed, I am constantly second-guessing. He told me he has "never had another relationship with another person in the time we have been together" but that doesn't omit a ONS, or kissing someone, does it? Now I am making myself paranoid! TBH I cease to care. Just that I am cynical, too!

It is the end of the road. The problem with an amicable ending is that it opens up to "what if?" behaviour. Never say never. We could get back together in the future. But I am in the here and now, and I don't love him any more.

Sorry to hear your story. Yes, that is very wise - the sadness is there but it doesn't mean it is the wrong decision. This feels like the right decision.

Thank you for clarification about Form Es (hopefully lack of, for us). I am happy that we won't have to go down that route. I am in a psychologically vulnerable position and can't cope with any more crap.

NotJanine I did a search on your name - hope you don't mind - and got the gist of how you did your divorce. Hoping to go down the same route. I'm so pleased to have people who understand on here. It suddenly seems real in a way that selling the marital home, finding 2 properties, telling the DCs, telling family, did not...As you suggest, it feels wrong to be X vs. Y when we are trying to stay amicable. Maybe that is the nature of the marriage, though. We work well as friends but not as lovers or life partners.

THANK YOU, all of you. Happy to hear any more gems of wisdom about this...

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