So confused, what are my chances to proceed with ‘unfair’ split ?

[User888372838]

Hi,

Appreciate if someone could please share their knowledge as I am getting mixed messages from solicitors.

We are married for 5y both still in our 30s. What are my chances to keep 100% of my savings? We have no kids, no house (currently renting). My husband is happy for me to keep my sole savings and will sign whatever has to be signed for judges to approve as he doesn’t want anything from me. However he does have lower income than I do (well that’s part of the reason I was able to save more!).

So, one solicitor told me it’s a no-go for judges and we should come up with close to 50/50 split and the other told me we can proceed with constent order but it has to be clear my spouse consulted his decision with the solicitor (of course he will, but as mentioned before he doesn’t want anything form me). Who should I listen?

Also, as an alternative if we decide to put forward 50/50 split and I will share my savings, how does it actually work? Is it just a bank transfer to my spouse and that’s it? Can he send it back to me?

I really want to avoid hassle as we are in agreement, but I don’t want to leave without clean break. Or maybe I actually should? Spend everything and apply for clean break after a year? Any thoughts please ?

thanks!

If you don’t have children? It’s a relatively short marriage, an unequal split will get signed off as long as he can demonstrate he’s had independent legal advice and us not being pressured into it

How long was your relationship altogether?

I think if he’s taken his own legal advice and is able to re-house himself then a judge might be happy to sign off but they do have a duty to ensure you’re both going to be ok financially.

We are 7y together, planning to move out from our current flat within next month, so both of us will rent out separately.

Did you pay 50/50 of all living costs? Did he facilitate you earning more in any way? Can he afford to set himself up in a home without any of your savings? If yes, no and yes then it's fair for you to keep all your money but if the answer to any is not that then you should rethink as no solicitor will advise him to accept nothing and therefore the court may not accept it.

The reason you are getting mixed messages is because it depends on the decision of the judge it comes to in the day.

At the end of the day you can't predict a judge's decision (our financial order was asked to be redrafted) but you can try to prevent the most obvious things they are likely to object to.

If your ex-spouse has had his own legal advice it is more likely to pass.

Are there children? That will also impact.

You can't just get him to sign something it doesn't work that way.

yes, if division of assets is agreed then bank transfer is fine although splitting pensions is more complicated.

They will need check that he has had legal advice, hasn't been pressured and understands what he's saying.

As it's a short marriage and no children, a judge may well approve if you both agree on what you want to do.

A friend was in a similar position and the judge approved. Not to say that would always be the case.

I paid more than 50% of living costs as he earns less and we calculated the exact %split to be fair. He earns around 2k per month, I think this is reasonable amount to support himself moving forward. Are there instances where you go against solicitor advise ?

We moved to the UK few years ago, so pensions are not significant and we are not planning to split it. If it’s simple bank transfer we will probably start with 80/20 split and I’ll ask him to transfer it back.

Your question asks about the chances of proceeding with an 'unfair' split. If a judge, on the day, considers it unfair, it will not pass regardless of who has signed what, in whose presence. But deviation from 50/50 does not make it unfair. In fact, of course in many cases, a 50/50 split is not fair. The reason 50/50 is referenced is that it is a starting point under which to then consider other factors.

Your 'sole' savings are matrimonial assets. Justifying that they are your savings because you were able to accrue more as your spouse earns less should make you question whether its going to be 'fair' for you to retain them 100%, though I appreciate there are many factors.

There is no reason you won't have a clean break, it's just about arriving at a fair division of marital assets. Based only on what you've said, a clean break might be your husband (and you) having 50% of total matrimonial assets, or him possibly having more, depending on need, as he earns less than you. You would need to briefly explain any deviation from equality in a D81 form, which the judge will consider.

Morally, and legally, you should not spend the matrimonial savings in order to avoid splitting them. A whole host of reasons to avoid this. Similarly on asking him to send the money back - the court (or judge) is trying to ensure fairness, which is undermined if you then take money back. Remember too that the legal position will be as per the final order, any verbal agreement to have the money sent back to you is not enforceable.

Op, go to ADVICE NOW link at top of page

Read about “fair settlement “ . All this talk about it “depends” on court is dodgy advice. ALL courts have to ensure “fair settlement “ to ensure they can seal the consent order legally.
“fair settlement” is based on future needs, and is based on 10 or so criteria. It does not assume 50:50, though the courts like this if it is possible- but in many cases it isn’t possible or necessary .
Look at those criteria for your situation, see which could apply, then as part of your D81 in the”other information” piece, state why your agreement is still meeting “fair settlement”. For instance he may have less assets but a higher future earning power etc. try to ensure that you both show you have means to support yourselves

the other thing is to ensure you BOTH show you have taken legal advice, that no one is being naive, or coerced or stupid ! Make sure both solicitors are named on the consent agreement draft. The solicitor drawing up the legal draft will sign it, but you can write down who the other solicitor was and date they were advising

a court WILL reject a consent order where “fair settlement” is not met and no decent explanation is given, or where one party could be at risk of needing state benefits as a result (eg housing benefit) that they don’t get now. That’s why this fair settlement law exists- to ensure one of you doesn’t waltz off with a £1million and the other person homeless (ok, mass exaggeration but you get the idea).

id avoid a bank transfer outside of consent order

1. no guarantee he’ll pay when push comes to shove
2. he could reclaim at any time in future if your consent agreement said differently.

This is good advice Op.

Unfortunately one of most difficult things in divorce is coming to terms with fact that you WILL BOTH be worse off.

its how marriage works - you have joint access to each others assets, and that comes with massive benefits for both parties. In effect, you both have access to benefit from 100% of your joint assets (assuming you’re not being financial abused) . But when you split up that “100%” will be impacted- massively reduced.

realistically you’re probably going to find that “fair settlement “ rules apply to you in some ways (those 10 or so criteria - not all of them but maybe one or two). Unless your consent agreement accounts for that, addresses that, it will likely be rejected.

i was ONLY breadwinner in my marriage for last 15 years of our 30 year marriage, my pension was higher. I had contributed massively more than him throughout our marriage, not just financially, but in most other ways, he was also abusive due to mental illness. I divorced him in 2o21 on grounds of unreasonable behaviour. It was a massive shock to realise that his past behaviour and choices not to work are not considered in settlements, and that the settlement we’d have to make, according to the law on “fair settlement” would mean me giving up assets and pension that id worked so hard for.

It took me time to get over my anger at that, disappointment and fear for my future financial security, but I did get there in the end. And crucially I got there BEFORE I asked for divorce so that I could park that resentment and emotion and get on with an agreement as quick as possible. Trying to fight that would have racked up bills with solicitors of £1000s, taken months and allowed my ex to become increasingly abusive.

We did whole divorce in less than 4 months, and for cost of £1400 in total for solicitors and court.

Yes, it still “hurts” when I think about what I had to give up financially, but I’m no longer in that marriage and have been slowly building my financial security again. I’ve a way to go, but it’s in my own hands now.

You need to look at “fair settlement”, then understand and a dot what can be realistically accepted by the court. Frankly, the criteria are pretty clear so you don’t need a solicitor to figure out roughly what’ll it mean. Asolicotr may fight your corner to get a bit more, but it’ll cost you £1000s, take months more and cause you stress.

Hi - what was the outcome of the case please?.