Consent Order

I need to know where I stand regarding a consent order and what I may be entitled to. I am currently in the process of divorcing my wife and the divorce petition has been filed with the courts but my wife refuses to discuss anything with me about the finances and coming to an agreement. I have a solicitor but they are not saying anything about what I could be entitled too and has given me the option of making my wife an offer or asking her for financial disclosure and my solicitor says if it goes to court I am looking at around £10,000 in legal fees. Our situation is as follows


We have been married for just under 3 years

Me
The house is in my name and it’s my mortgage and I have About £70,000 equity in it
I have a standard company pension which will earn me £10,000 a year if I retire at 67
A car worth £12000
Savings of £6000
Salary of £45,000 a year

My wife

She inherited a house 3 weeks before our separation worth £175-200,000 with no mortgage
She is self employed with a fixed asset worth £20,000
Yearly salary of £25-30,000
Cashed her pension in using lump sum to help fund her business but gets £100 a month
Car worth £5000
No savings as far as I’m aware

My wife owes me a balance of £13000 which she borrowed off me to set up her business and she has been paying me a fixed amount each month to reduce the loan


Is it worth going to court if we can’t agree on a financial settlement?

If there are no dependent children and the relationship hasn't lasted significantly longer than the marriage then the facts of this case cry out for a clean break. There is not a sufficient difference between your respective earnings to be a maintenance case. On the face of it if she keeps what she has and you keep what you have that would be the obvious outcome. The house she has inherited is worth more than the matrimonial home after all. I don't give much for you chances of getting your £13,000 back and it wouldn't make much sense to got to court just over that.

You should not leave this in the long grass. You should suggest mediation. If your wife will not agree to that you should make a court application to get the financial issues formally and finally resolved because if you do that there will be a time table and eventually an outcome one way or another. I would be very surprised if on facts like these that this goes all the way to a final hearing at which a judge needs to decide. I think there is a very good chance that this will settle at some point after you have issued proceedings.

My wife owed me £18,000 at the start and she has paid me back £5,000 so far. She signed an agreement I wrote stating what the loan was for and the repayment plan and although there have been late payments and one missed payment and my solicitor says I can put this in the consent order or insist my wife pays the balance as a lump sum on finalising the divorce. We was in a relationship for 3 years before we got married and my solicitor says I may be able to ring fence the equity I had in my previous house when we got married so she may only have a claim on around £30,000 equity. I am a bit upset as she left 3 weeks after inheriting this house as I’m guessing she didn’t want to share the money or pay off my mortgage as was our agreement when I took out a large mortgage the house I bought nearly 3 years ago just after we got married



Edited 1 time(s). Last edit at 10/18/2020 05:44PM by Paraman.

>>my solicitor says I can put this in the consent order

The clue there is in the words - consent order. IF your wife agrees to such terms that is fine but if she doesn't there will be no consent order containing such a provision and you face the issue of whether you want to litigate for £13,000 when there is absolutely no certainty you would succeed on the point. The outcome in divorce financial proceedings depends upon upon balancing the needs and financial resources of both parties rather than upon strict property rights.

Ring fencing equity is a bit theoretical in these circumstances. Your wife has a house worth £175,000 and the matrimonial home has equity of about £70,000. That is what determines how assets should be split. On the face of it if your wife keeps what she has got she ends up with more than you so it is hard to see what further claim for capital she has got.

Of course, your wife probably doesn't see it like that. She probably sees the £175,000 as hers and the £70,000 as 'ours'. However, courts don't look at it like that. They look at what each party needs and what their respective resources are to meet those needs.

My wife told me a few months ago she won’t claim against me if I don’t make a claim against her but she only said that because she has more than me. When we previously split in 2019 she wanted to claim against what I have saying she wasn’t walking away from the marriage without anything, but that was before she inherited the house so why should I walk away without anything.

Things have changed since 2019 because she has inherited the house. Courts decide outcomes in divorce based upon needs and resources. The fact that your wife has inherited this house changes that equation very considerably because on the face of it that house (or its proceeds) will meet her housing needs.

It changes her housing needs on a massive scale and yet I’m stuck with a massive mortgage which is currently around £150,000. If it went as far as court do you think the court would award me some money from my wife?

>> I’m stuck with a massive mortgage which is currently around £150,000.

Er, you have said it is your house and your mortgage. The 'massive' mortgage was your choice.

>>If it went as far as court do you think the court would award me some money from my wife?

No. Your wife's inheritance is not a matrimonial asset and she acquired it in the dying days of the marriage. If she had inherited it years ago and it had gone into a joint bank account that would be very different but that is not the history of this inheritance. You should count yourself lucky that your wife's inheritance has reduced her claim upon what is undoubtedly matrimonial property - ie 'your' house.

The house and mortgage was only in my name as my wife was made bankrupt abour 5 years before we met so it was best not to have any links financially and so we couldn’t even have a joint bank account. The agreement my wife and I had was when we bought the house andI took our the big mortgage was that when her parent or my parent passed away we would use the money from selling the inherited house and pay off the mortgage but instead my wife left 3 weeks after inheriting the house



Edited 1 time(s). Last edit at 10/20/2020 02:55PM by Paraman.

Quite apart from the fact that it hardly seems sensible to rely upon inheriting something in order to pay off a mortgage you will not be stuck with the mortgage unless you want to be because selling the house is always a possibility. Also, of course, the money on mortgage will have been advanced on the basis of your ability to pay rather than upon the possibility that one of you may inherit sufficient in the future in order to pay off the mortgage. Mortgage lenders do not work on the basis of the possibility of inheritance. The 'agreement' you say you had between you and your wife about what should happen following any inheritance sounds more like you imposing what you want on the facts after the event rather than any genuine agreement.

Well the paying off the mortgage when inheritance was coming at some point in the future was my wife’s idea not mine. She is also making it hard for me to sell my house as she has put a home rights order on it and says she would not agree to it bring g sold so I will have to wait until divorce is completed before I can remove it

Obviously the house cannot be sold unless and until there is a formal and final settlement reached in divorce proceedings. That is normal.

As to the 'agreement' you thought you had with your wife about using any inheritance to pay off the mortgage I think you probably misunderstand what has happened here.

If, say, your wife wanted you to take out a large mortgage to buy a larger house she would, presumably, have used whatever argument came to hand in order to persuade you to do it. Such as, 'We can use any inheritance to pay off the mortgage'. In fact when your wife did receive an inheritance she made it plain she was going to do no such thing. Possibly she meant it when she first said it or possibly she did not. However, it does mean there is another possible explanation which has nothing to do with an agreement.