Family Law Question & Answer

Question : Family Law

I am getting divorced, assets = marital home, no mortgage, business & xx buy to let properties with 50% mortgages.

My ex is a xxxxx xxxxxx, can be threatening and as I had to work with him since I left him last xxxxx until recently I agreed on just 1/2 the house & 1/2 the business. I did this for 2 reasons:

1. They were bought with proceeds of the sale of his share in a family business.

2. For a quiet life.

We set up the business in xxxx, it was his idea and he had the contacts however it should not be 50/50 as I gave up my job and sold my car to fund the start up, have done the lions share of the work and his incompetence, he has a xxxxx xxxxxxx xx xxxxxx, has admitted he cannot cope - his brother has xxxxxxx xxxxxxx xxxxxxx, plus he has displayed threatening behaviour to myself and staff.

He asked me to buy him out, I agreed at an inflated price for a quiet life. My offer has now been withdrawn as he mucked me about for months causing the bank account to be frozen and having taken time to look at the figures and due to the economic outlook.

I want to go for 50/50 on everything to get some fairness re the business, my solicitor says that as a draft consent order has been drawn up I can't do this, however it has not been signed as until I was happy with how things were going to go with the business I was reluctant to.

Need to know where I stand on unsigned consent order and 50/50 split as I believe that I am entitled to 50/50 unless he can make a good case otherwise.

I was with him for xx xxxx, we married in xxx xxxx, there are no children. I let him be petitioner - again for a quiet life, all the reasons he gave are lies which I can prove apart from me not wanting children, which given his behaviour is not surprising. I await your advice.

Answer : Family Law

I am asked to advise Ms xxxxxx xxx xxxxxx (The Petitioner) with regard to the legal status of a Consent Order drawn up in anticipation of an application for a Decree Nisi and the established practice held by the Courts of an equal sharing of matrimonial assets upon final separation.

The Petitioner states that she and her spouse have been together for a period of xxxxx years. The actual duration of the marriage is unclear but it is assumed to represent a significant portion of this time. There are no issue.

The Petitioner states that she and her spouse are (equal) partners in a property investment business whose portfolio currently includes xxxxx properties which are rented to tenants. The business was instigated by the spouse in xxxx but the Petitioner asserts that from the outset they were both partners of equal standing having both contributed to the original financial outlay.

The Petitioner further gave up her employment at this time presumably to concentrate solely on the fledgling business. The Petitioner and her spouse's other main asset is the matrimonial home which has the benefit of being mortgage free.

The Petitioner states that she has been separated from her spouse since xxxx. During the intervening period to the present date the Petitioner has had to work in close proximity to her estranged spouse because of the nature of their business together. This, the Petitioner asserts, has led to an almost intolerable working environment. The Petitioner asserts that her spouse requested that his share of the business be bought by the Petitioner as the spouse felt he could no longer cope with the pressures involved with such a business and working environment. The Petitioner asserts that her Spouse's behaviour became so erratic that he was forced to seek medical help and xxxx xxxx xxxx xxxxx xxxx xxxxx xxxxx xxxxx. This event following a period where the spouse had been openly threatening to the petitioner and staff at their place of business.

The Petitioner states that she agreed to her spouse’s request to buy him out of the business. The Petitioner asserts that an inflated price for her spouse's share of the business was agreed in principal only and the Petitioner further asserts that this was done to facilitate "a quiet life"

This agreed purchase price (it is assumed) was to be part of the terms of a Consent Order, detailing financial settlements, drawn up by the parties filing for divorce. It is unclear what input if any the Petitioner had in this process.

The Petitioner however, has now decided to withdraw her offer in light of detailed financial investigation into the business. The Petitioner wishes the matrimonial assets including the property business and marital home to be divided equally between the parties upon decree.

The Petitioner states that she has been informed by her solicitor that as a Consent Order has been drawn up encompassing the favourable terms of her original offer to her spouse, the Petitioner is bound by them. The Petitioner requests clarification.

A Consent Order is defined by MCA 1973 as an order in the terms applied for to which the Respondent agrees, in effect, it is an order which both parties to the application to financial relief ask the Court to make without hearing evidence or argument. The key phrase here is "to which the Respondent agrees".

You as the Respondent in any such order filed with the Court would have to agree to the terms set out, you clearly do not.

The practice on applying for a Consent Order has been reduced into a practice form by Registrar's Directions of 17 February 1986 and 5 January 1990. The following documents are required to be filed at Court:

a. the consent notice of application in Form A, endorsed with the signature of both parties

b. two copies of the draft order, one of which must be signed by the Respondent ( You )

c. Form M1, duly completed

When there are solicitors on record, that is advocates acting for the parties petitioning for divorce, they must sign the documents on behalf of their client.

Your solicitor will also be aware that you cannot change agreed valuations solely to reflect economic fluctuations and this may be the reason for the reluctance on their behalf.

However, a Consent Order is submitted to the Court for approval during or immediately following divorce proceedings. It is possible to invite the Court to approve the terms of settlement and leave the order on the Court file but the Petitioner makes no remark to this.

However, even in this event, the only remedy available to the spouse should the Petitioner rescind her agreement to terms previously agreed would be to institute separate proceedings for breach of contract rather than petitioning the Court to enforce terms.

Further, in the light of your statement detailing agreement to your Spouse's terms for "a quiet life" it is probable that any such action would be dismissed under the doctrine of duress.

As to the matter of equality in settlement, following White v White the Courts will always strive for equal division of matrimonial assets following decree, unless there are inescapable reasons for doing so.

This scenario will often involve the well being of children from a marriage and as there are no issue involved here and no obvious reason to deviate from established practice it is likely any application for equal division of assets will be looked on favourably by the Court.

In conclusion it is the opinion held here that any Consent Order agreed to in principal or otherwise will not be upheld by the Courts for the above reasons.

However, the Petitioner should be aware that any such agreement entered into freely and with foresight with her spouse over the value of assets to be divided following divorce cannot be altered to reflect economic fluctuations.

With regard to equality in division of assets, it is likely that following a Clean Break Order, the Court will follow established precedent and agree to this submission

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