Can I do this?

[BippityBoppity]

STBX moved out of the family home about 3 weeks ago. We can't afford to divorce as yet, but he has agreed to accept £5000 in instalments of £200 pcm as his share of the equity in the home. He is not in a position to pay any child maintenance as he is a full time student.

I'm concerned that without a divorce he will be able to change his mind in a few months/a year and just move back into the home. We're reasonably amicable at the moment, but I can't be certain that things will stay the same.

So, I was wondering if I could see a solicitor and have a contract drawn up stating that the property is mine once the £5000 is paid and have his name removed from the deeds (I'm not in a position to remortgage right now)? Would this be a document we could use as the basis of our divorce settlement once it comes to it?

Yes, what you're describing is a separation deed/agreement. The more you've agreed in advance, the lower the solicitor's fee will be but you are unlikely to get change from £500 plus VAT (about two hours work).

The deed will set out the fact that you're transferring the house from joint names into your names upon payment of a lump sum, payable by instalments. You need to make an application to the lender to have your husband's name removed from the mortgage account, and if they won't (which is likely), then you'll need to indemnify,or legally protect him, against any action by the lender in the event that the mortgage gets into arrears and they issue repossession proceedings resulting in negative equity.

Child maintenance is a separate issue, but can be covered in the separation deed in slightly vague terms to say that he will pay in accordance with the CSA guidelines ie once he's earning, he'll pay 15% of his net income for your child.

For the separation deed to be legally binding, both parties have to have separate legal advice. It doesn't go to the court, but each of you keep a signed copy and then when you eventually divorce, it will form the basis of a document called a consent order which will ensure that neither of you make any further claims against one another.

You can find a family law solicitor on the website www.resolution.org.uk

Thank you mumblechum - that's really helpful.

Also do check before you do this that your lender will let him be removed from the deeds. Also although that deed will help in settling finances later the only certainly is with a final consent order which would involve your getting a decree nisi which does not cost much and then having the court seal a consent order into a court order - the document you are drawing up. It would be much better if you could get that done all at once now and your solicitor can do it for you. However you would have to be prepared to divorce now.

Very religious people sometimes get an official separation approved at court like a divorce instead of a divorce and that IS binding in terms of settling finances but not really what you want here.

You want to make sure this consent order filed at court is a clean break too so you cannot claim more from each other later.

The only thing a separation can't cover is a pension sharing order. Otherwise it is binding unless set aside by a court.

But isn't that the key thing - a court can set it aside where as a financial consent order sealed by the court is the final court order on the finances? I thought a lot of people entered into separation orders thinking they were final and then came very unstuck when they realised they were not once the court got their hands on the situation later down the line and that divorce finances are finalised by the court when the court looks at them in England rather than at date of separation as in Scotland?

Yes, the OP will also need to do a consent order, as I said in my first OP Xenia.

Thank you both - I have an appointment on Friday with a solicitor so I'll go through my options then, but you've both helped clarify things.