Amicable unequal split - consent order?

[Bealoe]

A couple in their 30s are getting divorced. They've been together over a decade and married for eight years. No children.

Female put in all the deposit for the house. House is owned as tenants in common, around 90% to female. Tenants in common form and house purchase was signed after marriage.

Female put more into household finances than male while he studied. Male put more into household finances than female when she became unwell.

Male earns more now and has greater earning potential than female. Female still suffering from ill health meaning she can only work part time. Little in pensions or other assets for either but male has more. Male also set to inherit several hundred thousand in the future.

Both parties would like to walk away with what they put in, with assets and finances. Including a percentage for increased value of house. But the settlement they want to put forward is less than the 10% of the house the male owns on the tenants in common form. It is enough for a deposit on a small flat. Male currently renting room while female remains in home. He is no longer contributing financially mortgage is in both names.

Is there any hope of this getting a consent order for this? Two adults without dependents wanting to walk away with what they put in should be reasonable, surely? Worried a judge will argue with this.

If legal advice should be sought, how would you recommend handling it? Is a mediator representing both parties a good idea?

Please try and word any comments gently. This is a very delicate situation.

Thanks in advance

Are both parties in agreement? And there are no dependents? Then I really don't see any issue at all or why a judge would have one.

Unless there's something huge I am missing here it feels like if wveryone is happy, judge will just stamp it.

@SavBlancTonight both parties in agreement. No pressure or coercion on finances.

Just read things that face suggested it isn't really in your hands and feeling concerned now.

There is a very good probability that it will be challenged by a judge if you cannot demonstrate that you have both sought independent legal and that you have knowingly decided not to enforce your entitlements.

The judge would do this to prevent any future legal challenge on the basis of unfairness and lack of knowledge. They are not in a position to know if there is no pressure or coercion. They will address this by referring you both back to independent legal advisers.

If you can both demonstrate you’ve had independent legal advice it will ultimately be approved as there are no dependent children and you’re both young

Is the plan to sell the house and split the proceeds? If so, and one party gets more than their TIC %, might there be an issue over CGT?

The consent order will cover everything, not just the house. So even if the house is 95% to female, if male has a higher pension, savings and income it will look much less uneven when all that is on the forms too. You'd be surprised about how much pensions are worth, so male having more could easily even it out. The 90% ownership by female would also carry extra weight if done after marriage.

Nope. The judge will not just stamp it

read numerous posts here historically about posters having their consent orders questioned or even rejected

OP, the court has to ensure , by law, that any consent orders comply with the marriage act section 25 (or maybe26 can’t remember ) that outlines 10 or so criteria for “fair settlement “. “Fair Settlement “ isn’t a straight 50:5o as many posters quote as starting point, but may end up that way, and if possible that’s what court prefers.

You can read about “fair settlement “ in the ADVICE NOW guides at link at top of page

so, any consent order can only be “sealed” without question if it meets fair settlement. And the court is obliged before sealing to check this by reading the draft consent order and D81 legal declaration to ensure it meets these legal requirements

you need to remember that no law is written for benefit of individuals - so these criteria are all around ensuring that one party does not end up dependent on the state, whilst the other party gets to live in comfort. That’s why the court gets final say as to whether they can legalise it by sealing it

The other thing you need to know is past behaviour or actions do not have any relevenance in settlements. It is all about future needs.

And that ALL assets are considered marriageable assets for financial declarations - in Scotland it is different re inheritances or what you came into marriage with. But during the marriage who paid what, who marriageable homes name was in is irrelevant unless a very short marriage.

so the solicitor isn’t saying contradictory things- yes your home is theoretically a joint matrimonial asset and must be declared on D81 and is “up for grabs” if you like when agreeing your settlement,ent. But legally dh can’t go through a conveyencing process as his name is not on deeds. He needs an order through courts to force you to sell. But if your consent order as sealed needs you to sell or remortgage, he can easily get that other order to force you to sell (he can’t force you to remortgage only to sell - remortgaging is your decision) and any delaying or arguing on your part will rack up solicitor bills

so, first don’t agree to anything before you’ve both done your full legal financial declaration. Remember he also has to include everything and that includes pensions and earnings, so be sure you’ve taken all assets into account and valued properly (pensions have to be valued formally) before you agree to anything.

so, if when you’ve both reached an agreement, it comes out in your favour, that’s ok provided:

1. it still meets all the “fair settlement” criteria - if it doesn’t the courts won’t seal
2. You can show you’ve BOTH taken legal advice and understand implications of the settlement. This is vital in case of person who will receive less. It gives the court the confidence that the person isn’t being coerced or that they’re just ignorant of the consequences.

so we did this. Ex, who was going to have slightly less income than me (retired so this was about pension sharing ) had time with solicitor. He didn’t want to, he didn’t like to spend money on solicitors 🤣🤣🙄, but I insisted and said if he didn’t it would cost us more as court would probably come back with questions and delays and if they actually rejected we’d have to pay additional court costs. On our consent agreement my solicitor (who drew up the final draft based on our non legal speak draft) added a place for him to record his solicitors name and when he took advice so court could see this had been done. But, we also ensured we met “fair settlement” and other than smallish difference in income, rest was 50:50. We had no issues, no questions and sealed fine.

so , yes you can. As long as it meets legal “ fair settlement” and it will probably help for you both to show you’ve taken legal advice.

by the way the ADVICE NOW guides are fantastic as Diy guides on how to get a settl,ent, and where you might want to use solicitor, where you should, and where you don’t need one. They have a group of solicitors that will do work on specific tasks you want them to (eg draft consent order only, giving advice to other party on what they’re signing up to etc. ) that help keep cost to a minimum

Thank you all, very helpful advice. Much appreciated