Wednesday, November 21, 2012
Family Lore Clinic: If my husband has been out of work for years will a consent order be not in my favour?
Firstly, as I have done before, I will assume that the term 'consent order' is used in its most common sense as referring to the court order setting out the financial/property settlement on divorce/dissolution of civil partnership.
Secondly, this question suggests a misunderstanding which I have come across before. The term 'consent order' means an order made with the consent of both parties. It does not mean an order imposed upon the parties by the court. Accordingly, a consent order can only be made with your agreement. Clearly, the questioner is asking whether the court will impose a less favourable order.
OK, having got that out of the way, to the main question: will you get a less favourable divorce settlement if your husband has been out of work for years? The answer is that you will not automatically get a less favourable settlement - it will depend upon the facts.
When considering a financial settlement, the court will consider all of the relevant circumstances, including the income and earning capacity of the parties. However, in most cases the main deciding factor will be the needs of the parties and the children.
Clearly, if one party is unemployed and the other is not, then the unemployed party is likely to be less able to provide for their needs, especially their housing needs. The court may therefore give them a greater share of the matrimonial assets, in order to provide for those needs.
On the other hand, the employed party's needs may be greater, for example if they are the one looking after the children. In fact, the needs of any children will be the most important consideration for the court.
Obviously, there are many possible scenarios, and many other factors that could be relevant, including the nature and value of the matrimonial assets. To get advice upon your particular case, you should consult a specialist family lawyer.