Question about applying for absolute before consent order [edited by MNHQ]

[Fightingback16]

2 questions.

1. I have a nisi what would be the downside of applying for the absolute before financial settlement. I am in the process of proceedings. I don’t want to be married to him but would hang on if it will effect the outcome. We have a house, few savings and he a small pension, around £15,000 he’s paid into it.

2. so I applied for financial proceedings, when there is an outcome does he legally have to abide by it. I can’t get him out of the family home, can’t get him to talk about a settlement, he said he’s going nowhere. My solicitor has said no to an occupation order as ive been gone to long. I did have a thread about this and received advice as I was threatened out of the house but solicitor has said unfortunately my chances are low and too much risk he would get to stay and would make him feel more powerful.

1. If you get the decree absolute it potentially reduces his incentive to reach a financial settlement. At the moment you have home rights which restricts his ability to sell the property or use it as security for a loan. If you get the decree absolute you will lose those rights unless you get a continuation order from the court. If he dies after the decree absolute but before the financial settlement you may end up with substantially less. I would strongly recommend waiting.

2. Yes. There will be a court order. He has to abide by it. If he doesn't you will be able to take enforcement action to force him to comply.

Thanks sorry I messed up the title, it was meant to say consent order not nisi!

What do you mean by home rights? I have my name on the deeds and mortgage, it’s jointly owed. Would this make any difference?

I also as soon as I left got a will stating that my half of the estate is to go to my daughter. He had a will a long time ago stating his half go to his sister or whoever. Would this make a difference?

If the property is jointly owned home rights are irrelevant. The other risks remain.

Note that what would happen to the property if either of you die depends on how it is owned. If you are joint tenants the property will become his automatically if you die, regardless of anything in your will. Equally, if he dies the property would become yours regardless of anything in his will.

If he dies after the decree absolute his will is dealt with as if you had died on the day of the decree absolute. This means you won't get anything and may not be able to make an Inheritance Act claim. You could end up a lot worse off.

We are tenants in common. I know I shouldn’t be rushing it but I don’t want to be married to this man. He was very abusive

Tenant in common with wills in which neither of us inherit. He did his along time ago, I never wanted my money to go anywhere else apart from him. I have a will now and it goes to my daughter

If he were to die before the absolute how would the split be made. My solicitor says I’m looking at a 70/30 split. Would it just get spilt automatically 50/50?

If he dies, there is no split. 100% of his assets would be dealt with according to his will. You would have to launch an Inheritance Act claim if you wanted any of it. As you would be an ex-spouse, any Inheritance Act claim would be limited to maintenance only. If you were not in any way financially dependent on him at the time of his death you would probably end up with nothing.

I understand your desire to get it over with but you really should get the finances sorted first. If you don't, he will not have any incentive to finalise the finances so may simply drag his feet in the hope that you will eventually give up.

He has no incentive already. He told me he’d make me suffer for as long as he possibly could, even if that meant jail. He was very abusive and hates the idea of giving me anything. These are his words he will drag out through the court process until there is nothing left, he won’t agree to 50/50 nothing!

It’s been 15 months already!

If he dies pre absolute they would still be real
dealt with via will as tenants in common?

Former spouses are entitled to receive such financial provision as it would be reasonable in all the circumstances for that person to receive for their maintenance. That doesn't mean they get periodical payments. It means that what they get will be linked to their maintenance needs.

Spouses (including divorced spouses where, within 12 months from the date of a decree absolute there have been either no ancillary relief proceedings or no determination of such) are entitled to such financial provision as it would be reasonable for the spouse to receive, whether or not that provision is required for his or her maintenance.

Can anyone talk me through a Form A, I’m so confused!!!!

You applied for financial proceedings by issuing form A.

Yes I also thought so. I instructed my solicitor who it turns out hasn’t, she has been bogged down with a big case. She has now gone on annual leave so I’m going to do it myself. Tbh I could really do with saving the money.

I’ve trawled the internet for advice on this form but nothing. So much help with the Form E though. This Form A is confusing!
All I want is for our situation to be seen at court there are boxes about periodical maintenance etc

Tick the boxes to apply for everything save for maintenance pending suit (unless you want a hearing for that).

What about where is says are you applying to court for or to proceed with an application..... and I assume I tick divorce?

Do I tick applying for?

I did my form A without getting it checked by solicitor (my own fault for leaving it too late but i wasn't in a very good place mentally at the time)...let me tell you, Barristers like nothing better than to pick petty holes in it to belittle you, so please at least get the numbers checked. I got told 'you are obviously a very intelligent person, do you really expect us to believe that this is simply an error'. Let me also say, that unless you are a basket case, i have found the courts to not be very sympathetic to those struggling to keep everything together mentally.

If it included numbers isn’t that Form E?