Date: 2 Jul 2007
Answered by: Kate Covell, Lawyer
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| Q. |
I have been separated from my ex for just over a year, we are not married but have 2 children aged 1 and 4, we have a joint mortgage, its for £155.000 and the house is worth approx £205.000 i have offered him £15k to buy him out (which at the time he had agreed to), but im not able to take him off the mortgage until 31/3/07 as i will have to pay a penalty and as the interest rights are so bad it will cost me an extra £150 month, we have battled through the solicitors but still no sign of reaching a decision as he is not taking the money to spite me, what i want to know is can i be forced to sell or if they say buy him out do i pay the £15k now or when my youngest reaches 18, or will he be entitled to half the equity in 18 yrs time even though i've offered to buy him out and i would have paid the mortgage, as my ex is a control freak and ive had to call the police out due to suffering from domestic violence
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If he applies to the Court for an Order for an immediate sale it is unlikely he will achieve this in light of the fact that the home was purchased as a home for yourselves and the children. If, when the youngest child reaches the end of his or her minority, he applies to the Court for an Order for sale he is likely to achieve this and obtain his 50% interest in the home.
Keep chasing his Solicitors for a decision. |
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Date: 2 Jul 2007
Answered by: Kate Covell, Lawyer
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Inheritance and divorce
My friend inherited a sum with her sister about 26 months ago. Soon after, her husband walked out and moved in with the now co-respondent in their divorce with whom he had been having an affair 'for some time'. My friend thinks that he was just waiting for her father to die before he moved out so that the inheritance would be included in the divorce. Callous though that may seem, is it likely that the courts will split this 50/50 (obviously depending on circumstances). The inheritance has been declared but it is really a matter of whether they would take the short time between inheritance and separation/co-habiting into account?
I appreciate is is a lot more complicated as there are other assets, the family home etc. but is this sort of thing known to have happened before to the panel's knowledge?
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It will of course depend upon what other assets there are but it is usual in cases that each party will take out of a marriage what they bring in to the marriage and then the balance is divided equally between them (depending on the length of the marriage). If there are sufficient other assets for both to rehouse themselves then it is unlikely the Court will touch the inheritance. |
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Date: 28 Jun 2007
Answered by: Kate Covell, Lawyer
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Hi, my mum has left my step father after 25 years of marriage as he was physically and mentally abusing her for years. He is now frightening her saying she is not entitled to anything as the courts will make her give it another go. She is very frightened to go back to him but she is becoming afraid by what he is saying. My mum has never worked as he did not want her to and my step father had an accident at work and has not worked since he was 39 and receives a very good pension. He has told her that there is no point in getting a solicitor as he will ignore it and she will not get half of the property as she did not contribute to this. Please can you let me know if this is true? Thank you.
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She needs to get urgent legal advice from a Solicitor specialising in family law. She clearly has grounds to divorce him on the basis of his unreasonable behaviour. He does not have to see a Solicitor for her to be able to do this. Also, she will be entitled, within the divorce proceedings, to all forms of financial relief including income, property, capital and pension relief. She must not let her husband bully her. If he is making her afraid she can also apply for an injunction under the Family Law Act to prevent this behaviour. Again, he does not need to appoint his own Solicitor if she choses to go down this route. |
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Date: 14 Apr 2007
Answered by: Kate Covell, Lawyer
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I married my husband in November 2003 after 16 months together (10 of those we lived together in the flat he already owned and I paid more than £250 the £400 bills and bought most of the food and house items, as well as did most of the housework). Before the marriage he was on some benefits and an income of about £200 a month from music royalties. Six months before the marriage he started work at a record company for no pay. After the marriage he started being paid (but not much more than the benefits - he worked on the understanding that his own music would be guaranteed to be published, which it has been) and spent all his money on himself or on his future earnings, while I, on my £1300 a month, paid over half of the bills, plus did most of the household work and spending (food, house items, many of his clothes, consumables for his work, etc.). I stayed in a job that does not require any of my qualifications, hoping that one day I would be able to fall back on my husband while trying to concentrate on a carrier, just like he was relying on me in the beginning. We had been talking about having children but he soon started to neglect me while drinking excessively (part of his lifestyle) and my unhappiness about the situation eventually escalated into an extreme emotional state which led to unreasonable behaviour (which was later decreed by the court at the divorce I defended, hoping for reconcilliation), so he decided the marriage was over in autumn 2005, started divorce proceedings in April 2006 and the divorce was made final a few weeks ago. The flat is worth about £200 000 with about £35 000 outstanding on the mortgage and I have savings of about £12 000. He is 7 years older and has always made the minimum NI payments and I have been contributing since 1998 and started a private pension fund in 2004. In view of the small assets and short marriage can I hope for a 50/50 division and possibly a share of future earnings (since he has been working on them throughout the marriage)?
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It would be usual in a case such as this for any assets already owned by one party to be retained by that party and then the balance to be shared 50/50. If the flat was valued at considerably less at the time you married then the profit thereon ought to be split between you 50/50. You ought to speak to estate agents to ascertain exactly how much the flat would have been worth upon your marriage and then you can see how much the value has increased. Remember that all capital assets have to be taken in to account upon divorce as well as any pension assets. |
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Date: 15 Jan 2007
Answered by: Kate Covell, Lawyer
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My partners, (we do not actually live together) ex wife is insisting that she needs to take out a £50.000 insurance policy for 11 years on him to make sure that there will be maintanence payment should anything happen to him. His children are 18 15 12. She is laying the guilt trip on him saying that she would not be able to keep a roof over their heads, he pays her £450 a month maintenance. We both feel very unhappy about this, that she would benefit out of his death, he has set in place that if anything happens to him - trust funds would be set up for the children, out of his estate and is now looking into maybe setting up some form of monthly payment out of the trust fund equivalent to the maintenance payment needed to keep her happy. We both feel that it is morally wrong that his ex who wanted out of the marriage because she met a younger man can be so insistant about this. So far he has refused, and she is being very abusive towards my partner. Please help!
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The problem is that if he has left money for the children in his Will this can of course be changed at any time. If she is going to pay the premiums and set up the policy herself then there should not be a problem. She will have to put herself or the children as beneficiaries under the policy. I would suggest a compromise is that the policy is just put in place for the duration of the children's minority and no longer than that.
Kate |
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Date: 29 Dec 2006
Answered by: Kate Covell, Lawyer
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I was divorced from my husband of 30 years in the high court in January last year. At that time a financial settlement was made awarding me half the house sale price plus £20,000 and all contents. That was all the assets which were declared at the time with the exception of pensions. Since then my ex husband has made an offer to buy the house meaning he has at age 52 found £285,000 It has come to light that during our marriage, he forged my signature on a mortgage application and returned fraudulent tax claims. The inland revenue expect me to pay £14,500 for the fraudulent claim. While we were separated he also made a loan application to a joint bank account for £17,500 again forging my signature. He has since divorce forged my signature on a joint policy which he has now after communication with his solicitoe stated he will give me half. How do I stand legally in terms of this knowledge. None of this information was available to the court at the time of divorce.
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Dear Susan,
If you can prove that your husband has forged your signature on several different documents then you should consider reporting his actions to the Police.
If you had an Order for ancillary relief within divorce proceedings and you think he has failed to disclose substantial sums of money within the proceedings then you can appeal the order regardless of whether it was made by consent. You must however do this quickly. The Court should be made aware that matters have come to light that neither you nor the Court were aware of at the time was made and your ex-husband has chosen to deliberately not to disclose these matters to the Court.
You must get advice from a suitably qualified member of the Family Panel who will know how to make the application for leave to appeal to the Court. Time is of the essence in this case.
Kate
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Date: 5 Dec 2006
Answered by: Kate Covell, Lawyer
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In the event that partners mediate an agreed settlement re: house,investments,savings,pension etc.... if a partner were to come into a cash prize win, such as lotto/prem.bond, would such cash be deemed as 'earnings during marriage' or would it be exempt in this matter?
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All financial matters should be taken in to account. If one party's situation changes then this will have to be taken in to account by the Courts when dealing with financial issues. Obviously, if there are ongoing proceedings relating to financial issues then the Court must be made aware, as quickly as possible, about any changes. This is so far an untested area as far as I am aware but of course it would put a whole different light on the agreement reached.
No agreement reached is final until an Order has been sealed by the Courts and matrimonial clients are notorious about changing their minds with regard to previously reached "agreements".
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Date: 4 Dec 2006
Answered by: Kate Covell, Lawyer
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my wife has petitioned for divorce after me leaving the house for a 2 week clear the air time apart. the relationship has soured in the last year and my wife lost her brother during the beginning of the year. she has hardly talked to me in the final weeks and has sited many facts about our marriage previous to the final year where i did not do a lot wrong. my solicitor is advising not to cross petition due to costs and the enevitable outcome of divorce. the unreasonable facts are none of assault or adultery but of attitude etc and support during her grief period which i dispute. as i am away from the property she intends to try and take everything and make me pay for wht i dont know. she is alos not allowing our 2 daughters aged 3 1/2 and 7 to stay with me overnight although the property im in has a spare room. what can i do to strengthen my position. my solicitor is aiming for mediation quite soon.
scott
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Scott,
Sorry that you are having a rough time. Your Solicitor is quite correct in saying it is really not worth you cross-petitioning since that would be an extremely costly exercise for you. If your wife wants to divorce you then there is very little you can do to stop it I'm afraid. Do try and get her Solicitors to agree not to pursue you for any costs of the divorce though since you could also petition her for divorce.
As far as mediation is concerned, that is a very good idea and may get the two of you talking to each other again about what is going to happen with the divorce, finances and the children.
The children should be having contact with you. It would probably be best if you could have visiting contact with the children building up to staying contact. The only thing I can advise you to do is to make it as exciting as possible for the children so they look forward to their visits and she does not have any ammunition against you to take back to her Solicitor. If all else fails you could apply to the Court for a defined Contact Order under s.8 of the Children Act within the divorce proceedings. Alternatively, there is a section in the Acknowledgment of Service Form you received with the Divorce Petition about arrangements for the children. If you have not already returned this form to the Court, you should put in there that you would like to see more of the children and the District Judge dealing with the divorce itself may call you both in to Court at Decree Nisi stage to try and thrash things out.
Good Luck.
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Date: 9 Nov 2006
Answered by: Kate Covell, Lawyer
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We have been married 2 1/2 years and been together onand off for 13 years with 2 kids aged 8 and 6 whom I have had a childminder for whilst I run my own business for the past 12 and half years - I also got paid out for an accident and have been given myown council house when we had seperated on one occasion, He has been to prison for drugs and has only just started contributing to the family home after all these years. What my question is whether or not he is likely to get the kids and if he can take half my compensation and half my business and the council house. Thanks
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When dealing with financial issues, the first consideration is the needs of children whilst they are minors. Unless he can prove that you are an unfit mother and the children would be better off living with him, it is very unlikely that a Judge would Order the children to reside with him and remove you from the home. You should ensure that the children have safe contact with him. It is possible, if he were to obtain a Residence Order for the children, for the tenancy of the council house to be transferred to him but in my view extremely unlikely. As far as your business and compensation are concerned, it is my view that this is also unlikely to be touched by a Court and you should be able to keep these since you brought these in to the marriage with you. All assets of both parties should be taken in to consideration when dealing with financial issues
Finally, if the children remain with you remember he should be paying approximately 20% of his income net of tax and national insurance contributions for maintenance for the children.
Do try and deal with matters as amicably as possible for the sake of the children and then you cannot be criticised in any way by your Husband or the Court.
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Date: 9 Nov 2006
Answered by: Kate Covell, Lawyer
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I am currently getting divorced and will be attending the final FDR on November 20th 2006. My wife and I are arguing over the equity in the house and how it should be split. The amount is approximately £220K. The complication comes from the fact that 5 months after I married my second wife, my first wife sadly died from breast cancer. I had taken out a (joint) life policy to ensure that should I die the monthly maintenance payments that I was paying my first wife would be replaced by a lump sum of £100k and hence ensure financial security for my two children. My second wife believes that she is entitled to some of the lump sum because I had never said it was for the children. The lump sum was used as a deposit on a new house to allow the children to come and live with us. Whilst my second wife morally has no leg to stand on does she have a genuine claim to the money from the life insurance or will the court understand that the money is for the benefit of the children and nobody else?
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Unfortunately the Court will take in to account all financial assets of both of you when dealing with financial matters but will have first regard for the needs of children. You do not say how old your children are but if they are still minors then one would assume that the Court would leave you enough to ensure that you are able to rehouse yourself and your children and also leave enough for your wife to ensure she is able to rehouse herself (with the assistance of mortgages).
You should ask your Counsel/Solicitor at the FDR what the position is in your particular case.
Good luck.
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Date: 7 Nov 2006
Answered by: Kate Covell, Lawyer
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My husband and I have been married for 24 years. There have been problems in the marriage, which has largely become a functional relationship in that we share a home, go out with friends on a Saturday night and/or for Sunday lunch but other than that live relatively separate lives due to different interests.
We own our home jointly and also own a rental property. My husband owns the land where his business premises are and this was bought with a lona added to our mortgage. My husband pays most of the costs of running our home and I generally buy the food and pay a few bills e.g. gas, sky television, some endowment payments etc.
My husband has recently admitted to adultery. He does not want to break up the marriage and says that he will no longer see this other person. However, I am not sure what do now.
If I file for divorce he may withdraw his admission and I have no other evidence apart from having seen a few text messages on his phone.
It will get very nasty if I go for divorce and he has told me that I will come out worse off as he will run up debts in his business to offset against the equity in our property so that I will not receive half of the value of our home.
Can he do this?
Can I obtain a divorce on the grounds of adultery if he retracts his admission?
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You can Petition for divorce on the basis of his adultery but if you have lived together as man and wife for 6 months or more after the admission then you are barred from using this ground (unless of course the adultery is continuing). You could Petition on the basis of his unreasonable behaviour citing his relationship with another woman, the text messages you have seen, and his threats etc.
If he has a successful business, and has had for a number of years, then suddenly, as soon as you petition for divorce, he increases his indebtedness then the Court would take a very dim view of that course of action by him.
It is important that you seek your own independent legal advice as quickly as possible from a lawyer listed in the Law Society’s Family Law Panel so that you receive full and unequivocal advice prior to embarking upon costly litigation. Since you appear to have been living in the house together with few problems for a relatively lengthy period, it may be wise to seek assistance from a mediator to enable matters to be agreed between you prior to your separation.
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Date: 3 Nov 2006
Answered by: Kate Covell, Lawyer
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I have been seperated from my husband for almost a year, firstly our marriage broke down when he had affair then we got back together, now the grounds are unreasonable behaviour on his part.
Since he left i have been paying (just about) the mortgage alone on my annual salary of £16,444.
We have 3 children (ages 10,7 and 5) and have been married for 7 years. the children are with me and will continue to be.
We bought our home in 2004 after living in council flat. We have both always worked and had joint account and both paid towards morgage, bills etc. He earns a great more than me as he is self employed and can earn up to £3,000 a month, which is more than double what i get.
Since he left he has made no contribution to me directly but has been paying a loan that was secured on the house which is around £297 a month, which he beleives that is sufficient enough, although this does not benefit my children in any way.
I have been having trouble making ends meet and when i mention anything about money to him he becomes nasty etc.
My home nearly went into litigation a few months ago as i was only managing to pay half the monthly morgage payments as i was trying to get him to pay the rest. full monthly payments currently are £679
The morgage company agreed to let these arreas to be paid back at end of morgage term after i explained my situation.
The last few months ive had to pay full monthly morgage payments and now have put house up for sale.
There is around 50k equity but loans need to be paid off in joint names etc and money borrowed paid back.
The house is in joint names and my husband is now saying he may not sign sale papers and not allow house to be sold.
My husband is living with a lady and her daughter and there is no intention of us ever getting back together, the divorce is underway.
My question is:-
1. can i get court order so that my husband has to allow sale of house.
2. can i stop him getting 50% of equity as he has made no contribution whatsoever to children etc. and has much higher higher income than me and i have our 3 children?
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| A. |
So sorry that you find yourself in such a difficult position financially.
To answer your questions:-
1. You should issue an application for ancillary relief to the Court dealing with your divorce on Form A. It is possible in those proceedings to obtain an Order for sale of the property. If he fails to sign the papers to sell the house then the Court can sign on his behalf.
2. When you issue your application for ancillary relief on Form A the Court will issue automatic directions and you will both have to complete a full financial Statement on Form E. When dealing with a division of the assets, the Court will take in to account all financial matters but first the Court will have regard to the needs of the children whilst they are minors (ie to be rehoused). It is possible to apply to the Court for periodical payments for yourself too and you could apply now for maintenance pending suit (ie maintenance for yourself until the final determination of the matter by the Court).
As you can see it is extremely important for you to get matters under way as quickly as possible to protect yourself and your children and I would recommend that you see a lawyer in your local area specialising in family law and preferably a member of the Law Society’s Family Law Panel.
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Date: 3 Nov 2006
Answered by: Kate Covell, Lawyer
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| Q. |
Overview of the Case
Come January 07 we will have been separated for two years.
The barristers met in June of this year and agreed a figure of 30K to myself. I wasn’t happy with this for two main reasons firstly I considered it low as I put 93K into the marriage out of a total earnings of 115K, and secondly she failed to provide full discovery, however, my solicitor and barrister advised that this is all I was due. The agreement was produced, but there were delays due to her wanting extra clauses added, and arguments about the house contents share. The final agreement has not been signed. Two weeks ago I got the house re valued at 175K an increase of nearly 40K since June. My solicitor has stated that he can’t get me any more money as a result of this increase, and that is where my concern is, coupled with the fact that full discovery has not been produced from her.
We were married in Dec 1999. She purchased the house in 1997 for 65K with a lump sum from her father of 32K; he also added an extension and a garage. The house is in her name.
I gave her some 39K in standing orders and cheques [she denied the cheques and I had to order copies of them from the bank]. I gave £11356 for furniture and house improvements, £11428 for bills, £11635 for holidays and £19843 in jewellery and clothes and funding her extravagant life style. That’s 90K+ I put into that marriage, with a total take home pay of 115K.
The mortgage is 40K. Her take home salary approx 1300 per month, mine 2200 per month.
During my illness, I was in Belvior Park for nearly a year, her Auntie Lillian gave her 25K, in the form of an interest free loan – my ex used this to purchase ISAs and Shares – these details have not been provided. Lillian also gave a wedding gift of 24K – which my ex denies. My parents gave us £9500 as I was on a reduced salary for a while.
I put in a divorce petition, August 05, on the grounds of unreasonable behaviour [she was violent and abusive] which she maintains would be defended – on the grounds of my alleged lack of financial support, lack of emotional support and alcohol abuse. She raised a non molestation order against me – a pack of lies which has been with drawn. I raised a non molestation order against her father as he would stop following me around.
I incurred debts of 15K during the marriage, loans and credits cards [paying for holidays and her extravagant life style – she spent 4k on Ebay], plus the 9500 from my parents. With a settlement figure of 30K that leaves me with 5500, not taking into account legal fees.
Her father and her Auntie Lillian want their money back, and produced hand written letters stating that the money was given in the form of an interest free loan. There was no mention of this during the marriage and the letters were not produced at the time.
This could have all been avoided if she had not continuously lied for that last 18mnths, especially where the finances are concerned.
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Since the final agreement has not been signed there must be a further date for you to go back to Court to settle matters. This type of thing cannot be left in abeyance indefinitely and the Court has a duty to take control of time limits. I am assuming the agreement was reached at the Pre-Hearing Review/Disposal stage of the application within the divorce proceedings. It is more than usual for both parties to feel disgruntled with the outcome of ancillary relief proceedings. You have to weigh up the additional costs you would incur in taking the matter through to a final contested hearing. You do not of course have to accept the advice you have received from your Solicitor and Counsel and they are duty bound to follow your instructions. However if they are both lawyers experienced in family law then their advice is worth following; they will have all of the facts and knowledge of the case, together of course with knowledge that your wife has not provided full disclosure, as will the Court.
If you are unhappy you could go to an alternate Solicitor experienced in family law in your local area for a second opinion and possibly Counsel’s Opinion but you must think about the costs implications if you take this route but do remember to tell him or her about the increase in value of the main asset.
Good Luck.
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Date: 3 Nov 2006
Answered by: Kate Covell, Lawyer
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| Q. |
I am currently going through a divorce, My house is on the market for £250,000. I have 1 boy aged 3 who I have 3 nights a week. How much is my Ex entitled to on the house sale?
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Unfortunately you do not say who is living in the house, how much the mortgage is, what other assets there are, who brought what in to the marriage or how long you have been married for. When the Court deals with financial matters first regard is taken of the needs of a child during its dependency, there are various other aspects that are taken in to account and then the Court will try and effect a capital clean break between you if at all possible. Since your child seems to be spending about equal amounts of time with you both you will both need to provide a home for him or her. If there is sufficient equity from the house sale for you both to purchase a house yourselves with the assistance of a mortgage then this is what ought to happen.
You ought to try and deal with matters amicably if at all possible with the assistance of a mediator or a lawyer specialising in family law in your local area.
Good luck.
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Date: 22 Aug 2006
Answered by: Mark Keenan, Editor, Divorce-Online
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I have been married for just over 2 and a half years.My name is not on the mortgage but i give her £500 a month for bills food etc.We have recently hit a bad patch and my wife wants me to leave the matrimonial home. I have nowhere else to go at he moment.Can she force me to move out?
She also says that in the event of divorce i am not entitled to anything i.e. a financial settlement.
Any advice would be appreciated
Thanks.
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She cannot force you to leave without a court order. it is your matrimonial home and you have a right to occupy the property unless a court says otherwise. As for financial matters if you can show you have made a contribution to the matrimonial assets then you would expect to receive something. I would also advise that you have a matrimonial home rights caution placed on the propertyto prevent her dealing with the asset. I also suggest you see a Solicitor as soon as possible for more detailed advice |
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Date: 7 Oct 2005
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
my partener was having an affair with a close friend, i didnt know it at the time and two weeks before she left we re mortgaged the house, she payed her bills and left me with the new mortgage, this was 20 months ago, she has not contributed to the new mortgage in any way, i have payed all the bills that were outstanding when she left and now she is seeking divorce and a financial settlement, she lives with her partener, he bought the house that they live in and they have just had a child.my question is if i am making all the payments on this current mortgage and she has made none is she still entitled to claim, we have no chidren and am i entitled to claim half of the payments from her before we come to any decision on finances?
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You have an argument that as the property was remortgaged to pay her debts and she subsequently left you that she should not get any further payments as her conduct in this regard was quite calculating. I should see a Solicitor to put this to her. |
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Date: 19 Apr 2005
Answered by: Mark Keenan, Editor, Divorce-Online
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I was divorced in July 2002 and my ex and I signed a financial consent order which was agreed by the court. This order required that my ex husband pays £75 a week in maintenance for our 2 children. He is not required to pay any spousal maintenance. In the 3 years since the divorce he has built around £3000 of arrears and I had an attachement to earning order agreed. This ran until last August when he went unemployed and the order has been placed in abeyance. He knows that I met someone at christmas and is now refusing to pay any maintenance for the children. How can I enforce the consent order? and will this cost me a fortune in court costs? I got the attachment to earnings without the aid of a solicitor can I do the same to enforce the order?
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If he has wilfully not paid, you can apply for what is known as a judgment summons. he will have to attend court and show he has not deliberately failed to pay. The court if they find he has can send him to prison. However what they normally do is suspend the sentence and give him an opportunity to start paying properly by standing order with an amount for arrears.
We can deal with this for you and have dealt with 3 successful cases so far this year. The cost is £170.00 + court fee. We do all the paperwork, all you have to do is attend the hearing.
Please phone us if you would like more information. |
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Date: 12 Apr 2005
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife and I are getting divorced and we are due to complete on 02/05/05, she has contacted me today saying that she can only afford to buy me out of our home for £5000. The equity in th house is at least £70000, which I have said all along should be split as we both have our own credit cards and loans etc, which will remain our own. We have no children, I have been assaulted by her father during the whole process, who came into our home uninvited after midnight and full of drink, I had him arrested etc.
All I want is for this to be over with and for me to get everything that I am entitled to, I also need to have my name removed from the mortgage so that I can get another mortgage elsewhere.
Please help me!!!!!
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Ian
In your case the court would look for a 50/50 split of the avaliable assets as you have no children.
It looks to me like the house should be sold to enable you to get your money, rather than rely on her to buy you out.
If she will not agree then you are going to have to apply to the court, and for this I suggest you instruct a Solicitor. |
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Date: 10 Mar 2005
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
my husband and i split next year. we have a son aged 10. i left the family home and left my son and my dog behind untill i found somewhere permanent. 3 weeks later my husband put an advert in the paper and sold the dog. the woman who he sold it to will not return it as i have asked. the dog is kennel club registered in my name and is also microchipped in my name. how do i stand in law. by the way the she re registered the dog in her own name and my husband signed the paperwork in my name
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You need to contact the police as this is fraud, pure and simple. he has signed a false instrument which is an offence. The sale of an animal is the same as the sale of a car or a house in law.
You may also be able to get an injunction against both parties to have the dog returned but you will need to see a solicitor about this. |
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Date: 28 Jan 2005
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
This is a long one!
I separated from my ex wife in March 2001, after a ten year marriage - at the time we were partners in a business that had a large turnover and provided a decent income but had little in the way of net worth.
When we separated the business went downhill and a number of debts accrued. Bankruptcy Petitions were presented against both of us and, by selling the former matrimonial home (which had equity of about £80k), the debts were paid off, leaving virtually nothing. Because she buried her head in the sand though, she was made bankrupt in any event, and since then a number of creditors from after separation (i.e. debts that she incurred on her own) have jumped on her Petition, so it is not just a case of discharging the bankruptcy. The bankruptcy obviously presents difficulties in terms of her receiving a lump sum, and possibly maintenance too.
Although fully capable of working and earning a salary of about £16k, she has worked only occasionally since separation and is now on income support. She is not in any relationship that I am aware of. I have worked continuously and have paid maintenance of varying amounts to her (for her and the two children) since separation, usually of between £1,000 and £2,000 per month all in (i.e. taking into account mortgage payments, rent, car and so on).
For the last eighteen months, I have paid £995 for her rented accomodation (it was rented through my company, but the tenancy has now been transferred into her sole name, and she has made a claim for housing benefit), and £512 per month for the two children.
I have been in a new permanent relationship since March of last year and my fiancee and I are due to marry, Decree Absolute having been granted in July of last year. My fiancee works and has two young children who live with us, and for whom she receives maintenance from her ex husband. She has not received anything from him for herself either in the form of capital or maintenance.
My children are 17 and 15. Since January my son has left full time education and is now employed, so my obligation to maintain him obviously comes to an end.
I am renting, so there is no capital (other than a pension - although she has an identical one). My earnings are high (about £60k), but then so are my outgoings. My company currently has little net worth.
My ex wife claims that her financial position is awful, and she wants either a lump sum or maintenance payments both for the younger child AND herself. She is very vocal to my children about the financial situation, which causes enormous strains, and as a result there are strains between myself, my fiancee and her children.
Obviously I want to provide for my daughter, but it seems that no matter how much I have paid in the past, the situation never improves. If I am honest I do resent paying anything to maintain my ex wife, simply because it is now four years on, I have paid a lot already, and she has done nothing whatsoever to help herself.
Bearing in mind her bankruptcy (which has about eighteen months left to run)and the fact that maintenance payments will (I think) be offset against her benefits, what sort of order is it likely that a court would make, or what arrangements could we make that would help the situation?
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| A. |
From what you say, she would not be entitled to any capital from you as there are no capital assets to divide save for the pensions and as you say she has an identical pension, so there is no disparity.
As for maintenance, the court cannot award a child maintenance order if you cannot agree as this is now the responsibility of the CSA.
In my view all you are going to have to pay is statutory child support of 15% of your net income for your youngest child. She is not going to be any better off by having a spousal maintenance order and if she did this would only last until your youngest finished education as she is capable of working. |
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Date: 18 Jan 2005
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
Hi,
My wife and I have been married 5 yrs. We have 2 children, 3 & 4. We bought the jointly for cash (no mortgage) and now I want to buy her out. This will result in her getting about £30k. She wants to put it in her mothers name so she can still claim benefits (she doesn't want to work). This means I will have a mortgage to pay and maintenance. What should I do?
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| A. |
You cannot put it into her mother's name I am afraid and there is no way she can avoid this. if she wants a settlement then it will have to be on that basis.
You will have to pay child support and possibly some further maintenance to her, but this will be taken by the state if she remains on benefits.
I suggest you see a Solicitor asap. |
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Date: 12 Jan 2005
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hi I am officially divorced the absolute has come through but the financial arrangements are not sorted. There is 30K equity in the property but my son is being investigated for ADHD and my ex wants me to release equity in the house. I do not want my son unsettled and moved from his close friend who lives next door My ex does not pay the mortgate, he paid 3 installments before he left- but paid 1/2 the mortgage on our last home and we got 7k deposit to put down on this one. My children are 7 & 8 if and when he takes this to court, what would be the likely outcome. I also pay the secured loan which he refuses to pay half to. He pays £50 maintenance per week, he has a partner and jointly they earn 36K plus. I also have a partner and he has 3 children. Thank you for your help
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| A. |
This is a difficult one as you both have new partners. if your some did not have difficulties then my view is that the court would order a sale to release equity.
You could agree to release some equity now, with the rest payable when you sell or your son reaches 18.
I would see a Solicitor asap. |
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Date: 23 Nov 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Dear experts,
Please can you clarify something for me in terms of what the financial cost of divorce may be to me.
My husband moved out a year ago after 24 years of marriage. He has now started a relationship with someone I first suspected him of having a relationship with 10 years ago.
I remain in the marital home taking full responsibility for the mortgage etc, something which I have done since supporting my husband to complete a degree between 1992 and 1995. Since our marriage in 1979 I have always been a wage earner, often the main earner. Even when our children were small I always ensured that I contributed to the household budget. Since 1991 when my career took off again, All my salary was paid into the household account and all payments made from that account. As I said before my husband was at University from 92 - 95 and after that when he returned to employment the banking and bill apyment arrangements continued as before. My husband contributed £500 of his £1300 salary each month and when he changed jobs this arrangement slipped for some considerable time. I have to acknowledge that being in the building trade did mean that he was able to provide materials at favourable costs and paid cash for such things. I have bank statements and salary slips indicating the imbalance of this situation and want to know whether or not I would be subjected to the 50/50 split that is the norm if I can show that there was not a 50/50 contribution during the marriage. Our sons both still live with me in the marital home although they are over 18. One son is currently at University.
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| A. |
The court will take into account contributions to the assets as part of their formula for dealing with these things, as well as your ages, pension assets, and your relative need for capital and income. I would suggest that if you cannot agree a settlement with him that you either attend mediation together or get some independent legal advice from a solicitor. |
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Date: 11 Sep 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
After 28 years my husband has left me for a young girl. My house is worth 180k. Our savings are 10k. His pension is worth 98k and mine 13k. My 18 year old daughter is just about to start Uni.What can I expect to get from the divorce and what about support for my daughter. I have been told I will probably need to sell the house to give him about 50k. I earn 16k and he earns up to 34k. What do you think.
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| A. |
I think you will be looking at a straight 50% split of all the assets added together together with 15% of his net monthly wage until your daughter finishes Uni. That would be the norm in a long marriage. I would not expect you to personally receive any maintenance as you are working. As regards the pension, it may be a good idea to ask for a pension sharing order |
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Date: 28 Aug 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
The house is in my name only and I have pay the morgage and everything since it was purchaste it in November 2001 due to my wifes bad credit record we were advise to get it in my name only and my wife agreed to this and she left on the 23rd Jan 2004 and she is divorceing me she has ure girl of 8 yrs and i have my son of 14yrs what cliam has she got if eny as due to finanshal constriants I have not got a solicistor and her solicitor will not clarify eny pionts I have requested in corespondent such as above can you help please
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| A. |
In my view she is on the face of it entitled to no more than 50 percent of the matrimonial assets which includes the house, savings, shares and any pension assets you both may have.
Because the house in your sole name is irrelevant, as it is the matrimonial home and the needs of the parties for housing and capital will take precedence over the fact you bought the property in your sole name because of her bad credit history. |
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Date: 20 Jun 2004
Answered by: Angela Riley, Partner, Laceys Solicitors
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I had been married for 11 months and separated for 2 years now. 6 months before I married I inherited some money from a close relative which I was able to use to buy the house we were renting, outright. My separation has been very amicable and I have now filed for divorce with the courts but my ex is now saying that he is going to see a solicitor. The house is in my name and I have two children from my relationship with him. Is he entitled to anything I own?
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| A. |
In principle, when couples are married their assets become matrimonial assets, regardless of in whose name they are held. However, how these are divided on divorce depends on many factors, including how long you have been married and the various contributions which you have both made. You need to see a solicitor, who will be able to give you advice. On the facts which you have given, your husband's claim would not seem to be very strong, but without knowing the full financial position of you both it is impossible to be more specific.
Once you have both received legal advice, please consider mediation as a way ahead. You will be able to sit down together with a mediator, and agree a settlement which seems fair to you both. This will keep down your costs, and be much more pleasant that arguing through solicitors and risking ending up in Court. |
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Date: 25 May 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner never married his ex partner. They had a joint mortgage and two years ago transferred the property into his name only by way of a transfer of equity and after that point, she never contributed to any household bills, or the mortgage, did not purchase any belongings within the property. They had a child together later and she moved out this year. What does the law says is her entitlement, given that with legal advice she willingly and intentionally removed herself from the mortgage, with no financial gain.
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| A. |
She has no entitlement whatsoever as the property has been dealt with and the court has no powers to overturn that. |
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Date: 15 May 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been seperated from my husband for 6 weeks. We have been married for 8 years. Our rented home was purchased last year and is in my name only. He has never contributed to any of the mortgage payments or any household bills. We have 2 children aged 6 and 12. He doesnt pay any maintenance but says he wants a divorce and wants half of the house. Is this possible? There is no equity in the house as is just recently purchased and the children live with me and i am the sole provider. I would really appreciate your advice. Thanks.
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| A. |
He would not in my view be able to claim half of the house even if you had no equity. The fact is if there is no equity then what can he claim? Half the mortgage debt? Your husband quite frankly appears not to have a basic undertstanding of mathematics.
Even if there were any equity, he would not get half because you have children and he has not made any contribution to the asset. |
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Date: 30 Apr 2004
Answered by: Angela Riley, Partner, Laceys Solicitors
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i worked the entire marriage he drew unemployment. he only worked for about two maybe three months, i didn't see anyone until after i filed for divorce. i have a son that is three-we gave him my husbands last name. my ex-husband asked for a dna test. the child was two at the time we got married and my husband knew that there was a small chance that he was not the father because we were not dating around the time i got pregnant. my ex-husband was left a large house when his dad past away, two newer trucks, two older trucks, a boat, 4-wheeler, and everything in the house. However I painted three bedrooms, a large din/diningroom/varnished cabinets and the patio/done yard work cooked cleaned and worked 40 hours a week. Everything he has is paid for except a truck that i had been paying for. I didn't find out that there was more than one truck ont eh note until I had started paying for it. My ex-husband was informed by the lawyer that he was to go to the bank and talk to them about getting it separted. He never did and about 6months later the bank picked it up. I paid for a year before we were married and then after we were married. It is a small town that we lived in. He was well known and I had moved there to go to college. He knows the judge and police officiers. The child came back that he was not his child. He is not wanting to give me anything/ What should I do. I have a lawyer but i do not think he believes me. Should i get anything?
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| A. |
You infer in your question that you believe that your legal advisor is taking your husbands side because his family is 'known' in the town. If this is how you feel, and you have lost faith with your solicitor, then I suggest that you find another solicitor in another town. It is essential that the advice you receive is independent, and you need to feel confident that your solicitor is supporting and believing you. If you wish to sort matters out through mediation, your contact with your legal advisor would be less intrusive than if you were to take matters to Court, but you do need legal advice to make informed decision in mediation.
I would therefore suggest changing your solicitor, and then considering mediation as a way forward, armed with legal advice to help your decision making. |
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Date: 28 Apr 2004
Answered by: Angela Riley, Partner, Laceys Solicitors
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On Saturday 24th April at 01.00 my wife got up and walked out of the marital home leaving me and the children there. I noticed she was missing at approx 01.45 and woke the kids up so we could have a look around the surrounding area, this we continued to do for over 5 hours. I telephoned the police to report her missing and they came and took photos and statements. At approx 16.00 hours on the afternoon of the 24th my son and me heard my wife cough and believed this was from the next door house we went round and confronted the owner who said she wasn?t there and he had not seen her. We did not believe him and my son tried to do a search of the premises but was not allowed. I contacted the police and I asked them to come out which they did and told them of our suspicions they conducted a search of the premises and came out and told me that my wife was safe and well and that they had seen her but could not tell us where she was!
I tried to get at the neighbour and he tried to get back at me I was restrained by my father and he was restrained by the police at which time he threatened to get me. The police said that for safety I would be better leaving my home for a while but I said I could not do this without my children, they questioned the children in front of there Nan and they said they was happy to come with me and stay with me.
The marital home is now empty and my wife states that she is not living next door but refuses to talk yto me or the children and I need to sell the hosue so that me and the kids can get on with living a normal life. What is the leagal situation and what can i do about it.
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| A. |
Quite simply you need to take legal advice. It really is very early days for you to be making life changing decisions. What you can and cannot do depends on how the house is owned, apart from anything else. Once you know the legal position, you may like to see if your wife would consider discussing the situation in mediation. This would allow you both to make decisions about your future apart, where you and the children would live, and how often the children would see there mother if they stayed with you. However, until you understand the legal position, you are not able to make informed decisions. |
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Date: 25 Apr 2004
Answered by: Angela Riley, Partner, Laceys Solicitors
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Having obtained my Decree Nisi I have had to change solicitors , the solicitor who dealt with my divorce left the company and subsequently the matrimonial department ceased to exist.
My new solicitor (to sort out financial arrangements...no children involved...matrimonial home to be divided only) to date has helped me complete form E, which is ready to for exchange, written 3 letters to my ex-husband and letters to myself.
My husband is not co-operating at all.
However, I am prepared to make an offer but my solicitor will not consider it unless I sign a disclaimer, he has put me off going to Court as the costs are estimated at 12-15k, to date (for the past 3 months I have received a bill for £1007..and has told me to budget for £750-£1000 for the next 3 months.
He will not allow me to apply for the Absolute either.
This seems quite excessive to me.
What do you think?
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| A. |
If you are concerned about your solicitor's charges, you should ask for a breakdown of the work carried out. You should have been given details of the firm's charging structure at the outset, and you should have been given details of the complaints procedure if you are still not satisfied with the answer you receive.
As to the disclaimer, it sounds as though your solicitor does not agree with the level of settlement that you propose, and you need to ask him to explain his reasons. It is not unusual for the Decree Absolute to await financial settlement, and again your solicitor should explain the reasons behind this.
As to the overall costs, going to Court is always expensive, as you will involve not only hours of work for your solicitor, but probably a barrister who will put forward your case to the Judge.
If you wish to have more control over the decision making process, you may wish to consider mediation. The mediator will not tell you what to do, but will explore the pros and cons of various proposals so that you and your husband can jointly make decision as to how your finances can be divided, and this requires full disclosure of all assets. The only drawback here is that your husband has so far been un co-operative, but he may be more willing to co-operate in mediation, as this is a much less confrontational route.
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Date: 10 Apr 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I seem to be getting conflicting advice regarding charges if my divorce goes to court. I have been told on one occasion that because I am on legal aid I would probably get public funding should we have to go to court & that no money would have to be repaid as all the money I would get would be equity from the sale of the house which would be going straight into another property for myself & my children, but then I was told, the other, day that a charge would be put over the property & the money would have to be repaid when the house is sold. Please could you clarify which is correct?
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| A. |
The statutory charge applies to any money or assets recovered or preserved during the proceedings. So if you make a claim and recover 60% of the assets then your charge will apply to the 10% that you have achieved over and above that which you already own.
If your husband fights the claim and makes a claim against you then the charge will apply to all the assets.
I would always take it that the statutory charge will appl |
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Date: 4 Apr 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
a section in form E asks if you intend to re-marry or cohabit in the next six months. I asume this means from six months from the absolute not from having form E sworn. Could you tell me if this is correct and the possible implications of cohabiting/remarrying in any time frame.
Thank you
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| A. |
It is 6 months from the date that you answer the question, not the absolute.
If you settle or an order is made on the basis that you do not intend to cohabit and you then go ahead and do so, then the other party could go back to court and ask for the order to be amended. |
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Date: 24 Mar 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband and I are getting divorced after he left me last May, we were married for 7 years. We have two children aged 3 and 1, which are staying with me. He currently pays the mortgage on the marital home and a sum towards the bills, (i currently work 16hrs a week(. This is due to change as his father died last December and he is in line for a substantial amount of iinheritance from his fathers estate. He has said that he will pay a large proportion of the mortgage off currently @92K with a valuation today of £170k, leaving me with approx £12k of mortgage. I do not really want to stay in our house and would like to set up on my own, can you advise me as to whether I am entitled to a proportion of his inheritance and can he say that if he does pay this amount off the mortgage whether he is entitled to any of the profit made when the property is sold or when the children are no longer in further education.
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| A. |
If he is proposing to pay the mortgage off to about £12k then I would doubt you would be able to obtain any more funds from the inheritance. If he proposes that all the equity in the home will be yours then you are at liberty to sell and use the equity to buy another property. I would argue that you should receive the total proceeds of sale leaving him with whatever monies he has left. If he has a pension then the value of the pension needs to be taken into account as well.
Please seek legal advice before you proceed any further.
As far as the divorce is concerned we can deal with that part for you, leaving your solicitors to sort out the financial matters.
If you are on a low income you will get legal aid for the financial side of matters.
We can help you with your divorce using our market leading Divorce LegalPac service which costs just £90.00.
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Date: 16 Mar 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am a South African, living and working in the UK since August 2001, with a work permit until August 2006, with the intention to apply for residency in August 2005. I have been married for 14 years, with a 9-year-old daughter from this marriage. My wife and daughter live with me at present. We both work, presently rent a flat, have a joint banking account, as well as jointly own a house in South Africa, which we currently rent. I have an 18 yr old daughter in SA from my first marriage, whom I pay monthly maintenance to. The relationship between my wife and I have slowly deteriorated over the last year or two, with me consistently not having much to do with her by way of not communicating with her, where possible, as well as sleeping on my own for about 16 months now. Things between us are particularly unpleasant, where arguments were frequent, but now a lot less so, because of my decision not to talk to her, unless very necessary. I have also in this time started seeing someone, whom I share an intimate relationship with. I am considering divorce. What are the financial implications, given this scenario? Thank you very much for your advice.
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| A. |
Reevo
I think if divorce were to take place you would be looking at a 50/50 split of the assets, here and in South Africa, no more or no less.
You would also be able to divorce her on the grounds of her unreasonable behaviour from what you have told me. |
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Date: 23 Jan 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I filed my form E with the county court, as instructed, on 21st January 2004. Under the auspices of court procedures both parties are required to exchange their particular form E`s after these documents have been sworn. With this in mind I did write to my ex husband’s solicitor on the 6th January 2004, this letter, in which I stated that I was willing to attend their offices to exchange the form E, was sent recorded delivery, for which I have a receipt date of the 7th January 2004, has yet to be acknowledged by the other party. As I have been unable, due to financial constraints, to engage a solicitor, my primary concern is how I go about (i) arranging the duly appropriate exchange of these forms, and (ii) ensuring the form E that I receive is a complete and accurate copy of that lodged in the county court and (iii) should this exchange be overseen by a county court officer. I would appreciate any advice appropriate to this matter.
Yours faithfully,
L Y Jones.
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Mrs Jones
Exchange of Form is usually done by way of letter but the way you have attempted to deal with it is a very good way of ensuring compliance.
My advice is to write to his Solicitors and tell them that if exchange of Form E has not been completed by ( x date) you will apply to the court for a penal notice to be attached to the directions and seek costs. |
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Date: 18 Jan 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife split from me about 18 months ago and still insists that she does not want to get back. We only got married in Sep 2001. Ive had 18 months of hell and I now want to move on. We have a 8 year old boy together and she also has a 12 year old boy. I work full time but she does not. I give her £200 a month but I couldnt prove that.I also know that she has seen someone else , so I have to move on.
Can you please help me as I do not know what to do or who to ask. I also want to move to another town to get away. If I buy a house can she take it from me?
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| A. |
Scott
What you need to do is bring divorce proceedings as soon as you can for her unreasonable behaviour if she will not admit adultery.
The £200.00 a month you are paying her, will not have to be proved yet, as she would not be able to get any money unless there was a court order in any event, so your voluntary payments are fine as they are.
If you buy another house, she would not be able to touch the equity as it is not a matrimonial asset because it was bought after separation. She may be able to argue that she would need it to house your child. but as she already is housed that argument would be very weak. |
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Date: 9 Jan 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner is paying all his wife's divorce costs. The bill she has run up so far is in the thousands. She continues to pay approximately £800 a month to a solicitor.
Two questions:
As my partner foots the bill, but the solicitor acts for his ex-wife, does he really have no right to see the solicitor's charges?
2. Does he have any legal redress if she is running up high legal costs deliberately?
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| A. |
Why is he paying the bills? If the court has not made a costs order then why is he paying her bills?
Why has nothing been settled so far? It sounds like a stitch up to me.
Does he have a solicitor of his own? If not I suggest he get one as I think he is being taken for a ride. |
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Date: 18 Dec 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Help!
moved in with partner nov 99. Married jun 2000. married for less than 2 years with one child of the family aged 8 (maintenance is provided for by real father). Separated feb 2002. wife's income 15k (inc benefits), my income is 22.8k.
currently 110k of equity in property. wife is refusing to sell property as she says she has limited mortgage raising capacity and wishes to remain there.(since the split she has run up 30k of debts. has offered me 30k deferred until child 18+ or she remarries etc...
obviously i'm not impressed with this and am pursuing a better deal through the court. what is a court likely to award?
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| A. |
This is a difficult one because of the child. Her needs as a parent will have to be taken into account, but because the child is not yours and is maintained, the duty of the court to try and provide housing is diminished. I think you should be looking at a straight 50/50 split with a sale of the property. However your Solicitor may want to take a barristers advice on this matter as the child complicated matters and case law may provide an answer. |
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Date: 30 Oct 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife has commited adultery she does not have her name on the mortgage.. by law what can she get from a divorce!
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Steph
It depends on how long you have been married. If it is a short time then she would be entitled to a percentage of the growth in the property from the time she started living with you until separation. That would usually be 50% of the difference. if you have been married for some time or have children, then that would be a completely different matter and would depend on a number of factors. |
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Date: 3 Oct 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hi there, I have been using a solicitor for the past year to obtain a divorce which was finally granted in June (phew!), but I left the family home prior to this due to abuse so I left as quickly as I could and without any furniture, Up to now, he is still dening me anything and says that "I wont get anything cause I left !". Anyway, I have decided to take this to court for an ancillary hearing which is on 3.11.03 but my solicitor has since advised me that my funding has run out, so with this in mind, I applied to the LSC for additional funding which was turned down on th grounds that the cost of the furniture will be a lot less than the solicitors costs, so therefore it cant be granted ! I feel this to be really unfair that someone that needs their furniture but hasnt got a lot of it cant get funding, whereas if I had a lot of money and a lot of furnitre they would give me funding ? I just do not know where to turn cause I know for a fact that his solicitor is going to be present at the hearing ! . Please help !
Thanks
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Jennifer
If all you are arguing about is furniture then I would attend the hearing without a Solicitor as the judge will make his decision on the basis of need for the furniture, there is very little law involved and the judge will help you because you do not gave a Solicitor. In fact it can often be an advantage. |
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Date: 25 Jul 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have known my partner for 18 months and we are contemplating living together. He is in the process of divorcing his wife (the decree nisi is through). They have not however reached a financial settlement and I am reluctant for my income to be taken into account in this, which I understand will happen if I move in with him. Once a financial settlement has been agreed can my earnings still have some effect on this? I have been told that if I move in within 6 months then this will be the case and we may have to pay his wife/ex-wife a sum of money.
My partner's house is in joint names (with his wife) and we are considering re-mortgaging it in our names if his wife is prepared to accept a lump-sum. Unfortunately this can only be accomplished if I help finance the house as I earn quite a bit more than my partner. Also if he has to sell the house then we would want to by another property together as he would be unable to purchase a suitable property on his own. He has a son of 24 still living at home and another of 16 who still has two years to complete at school. Thank you in advance for you help
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| A. |
If your settlement is based on the fact that he will shortly be cohabiting and she is aware of this then she cannot go back to court later and ask for more as full disclosure will have been given.
If however you are basing your offer on him not cohabiting then you are at risk.
Your income can only be taken into account as far as maintenance is concerned and only as far as your partners outgoings are concerned ie his disposable income will be higher as the bills are in theory shared.
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Date: 26 Jun 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
I have been separated from my wife for 16 months and we have sold our home splitting the equity equally.
no divorce proceeding are yet in progress but i am worried about the financial aspects. i am currently paying off a £20k loan in my sole name but which is a debt from the marraige as it was used for paying off debts amalgamating loans etc.
i have engaged a solicitor for advice but want to know what i have to declare financially ie pensions, endowment policies. as all the endowments are in my name what is to stop me cashing them in and paying off the loan?
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| A. |
If you reached agreement about the finances generally, then surely the endowments were taken into account as part of your agreement.
Therefore if you cash them in to pay of your debt, that will be fine.
If the endowments were not part of your settlement then you will not be able to cash them in until agreement has been reached or an order made. |
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Date: 31 May 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
hi
please could you tell me the purpose of the form entitled form E and does everyone have to fill one in when getting divorced
many thanks
melanie
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| A. |
Form e is the document that parties prepare during negotiation for financial matters and generally speaking everyone has to complete one. However if you are both agreed on your finances then you do not have to go into so much detail as when you file the consent order there is a smaller form called the statement of information that is filed with the order. |
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Date: 24 May 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
I have recently received my husband's sworn Form E and there are several areas where he is deliberately trying to mislead the Divorce Process. I believe he is lodging with friends in order to claim that he needs the maritial home sold so that he can be re-housed and that this will provide a suitable place where overnight 'contact' can take place with his 'children' from a previous marriage. His children are both 19 and 17!! When we lived together they showed very little interest in staying overnight with their father. He also alleges that he is still paying CSA for both 'children' and that they are attending College. If he succeeds in his claims then I fear that the Maritial home will get sold and this would make both myself and his step-children homeless. They are aged 14 and 10. There are also some financial irregularities in the Form E.
How can I prove to a Judge that he is lying and that he is stretching the truth about his children attending college so that they come across as dependent. I believe his 19 year old is working and that the 17 year old earns some money as well!
Is it worthwile to have a Private Investigator get some proof of the above and also of the new relationship that he has begun since we split up. I feel very confused! Regards Theresa
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| A. |
Well the judge will look at the evidence and make his decision on the balance of probablities.
If you caqn obtain eveidence that the children are working, then that will greatly assist.
It is also highly unlikely that the court will order a sale of the property until your children are 18 in any event as they are children who have to be taken into account, more so than his children from the previous relationship. |
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Date: 14 May 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I was granted my decree nisi about 4 weeks ago, but my husband will still not give me half the furniture out of the marital home.
Do I need to apply for the decree absolute or will this automatically go through? and also when the absolute is granted am I still able to persue for possessions or is that it ?? Please let me know cause Im not sure if I need to apply for it and if I do and it comes through before I get anything from the house does that end all my rights? Thanks. Jennifer
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| A. |
My advice is to tell him you will not apply for decree absolute until he has handed the furniture over. He will then have to wait a further 3 months before he can apply and also because the furniture is part of finances, the judge can order that the absolute be stayed until he has handed over the furniture.
You can apply to the court for a financial order at any time. |
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Date: 1 May 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
After being married for over six years, my wife left for a new partner. They have lived together for the last 2.5 years, including a recent 10 month travelling stint around Australia. They have both returned to the UK and are expecting a baby together. My wife is not now working after voluntarily giving up her teacher job (30k) and her new partner is currently seeking work; he to voluntarily gave up his finance job (earning approx £80k) to go travelling. He has a property that they live in together and he will soon be back in employment earning a similar figure as previous. I still live in the matrimonial home and have paid the mortgage since she left 3 years ago. I also paid a 45% deposit on our house when we bought it. The house when she stopped contributing to it was worth £140k, it is now worth £230k! I have offered my wife a settlement based on an equal division of our assets when she ceased contributing towards the house, but her solicitors insist on a settlement at the current market value. She is claiming a lump sum order of £100k, meaning that I would have to sell the house. My issues are:-
- Would a court consider the value of the house when she voluntarily ceased contributing towards it?
- Will my 45% deposit for the house be significantly taken into account?
- Will her future needs and obligations be determined by her new partner?
- Will her conduct also be looked at by stopping work, going travelling and then having a baby with her new partner?
- Will my psychological needs be examined, as I need to remain in the matrimonial home for a stabilising factor to my life?
Any comments would be appreciated!
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| A. |
The answer is a simple yes to all your questions as these are the factors the court must take into account. Also the fact she has made no contribution and was with someone else will be taken into account also.
Her lawyers are playing poker with you, call their bluff and make a final offer to them by having a draft consent order drawn up and sent to them for approval.
If they reject it my advice is to head or court as quickly as possible. Thye will settle as they will not want this to go before a court. |
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Date: 29 Apr 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I left my husband of 20 years for someone else and have agreed adultery. I want 50% of what we worked for for those 20 years but he is offering less on the grounds that I am now settled in a new relationship with nice house, two incomes etc. Divorce is now going to trial and has cost me £6k already. When I ask my Solicitor why he is basing his case on what I have now and what I may have in the future he avoids an answer. Am I being unreasonable in wanting 50% of what I am due?
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| A. |
This is a grey area. Recent cases have tended to point towards a 50% award in large money cases. However the lw says the court has to take into account the needs o the parties for capital and income into account as well, so if your needs are met to some extent you could receive less if it would mean that it would put your husband into a position more equal to your own. |
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Date: 29 Apr 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
Dear Madam / Sir
I was wondering if you could provide me with some advice… incidentally I have found your online site extremely useful and informative, in truth I haven’t yet found anywhere on the web with as much information for UK couples facing break up!
Situation:
My wife and I have a son and very young daughter. She is Argentinian.
We have been back in the UK for 4 years after living together in France 3 years.
We have strong personal problems – these are compounded by the fact that my wife is unable to work here (shes an English language teacher) and she is extremely unhappy in the UK (an understatement) – a serious culture clash.
We plan to separate, however neither of us want to force this to be permanent – we both feel it important to make a clear separation of finances so that she can get her life together, and importantly to me, she has the freedom to CHOOSE her own path rather than be forced down a specific path due for financial expedience.
I have worked abroad a lot in the past – we both prefer living outside the UK, my wife specifically needs to go to Argentina to get her life back together. I have been unable to secure work in Argentina however I have job offers elsewhere in the world (though not the UK) with around 8 weeks holiday per year.
How we propose to resolve this:
My wife returns to Argentina with the children. I secure work overseas – and fly every 3mth to Argentina to spend a week or two.
In order to provide the financial freedom, we organise a separation – clearly delineating all financial issues, 50:50.
Including: 2 properties in joint names, bank accounts in joint names; Pension & investment fund in my name and assortments.
- this delineation will be especially important to enable her to sell UK assets (property) to purchase a property in Argentina, after around 6 months.
I will then pay a specific amount of my salary directly to a bank in Argentina for her to access.
- in the future should we divorce this will inevitably be linked to a formal %age (15%?) based on legal requirements as opposed to our initial agreement.
Questions:
What form of separation should we be opting for… ? (there is a miniscule possibility that we shall get back together).
This will have to be resolved promptly (activity needing us present within a month) – is this feasible?
My wife will need a representative in the UK that can act on her behalf once she is out of the country, in case there are any complications etc… with joint named assets.
– would this be a lawyer ?
– how would I find a lawyer who would understand international issues also if necessary?
If we organise a financial separation – can she sell off her assets in the UK without incurring capital gains tax (I understand that is fine if she doesn’t return to the UK within 5 years)?
- Who would I turn to for advice, and again how would I find a specialist who would understand international issues also if necessary?
- What are the implications if we decide not to divorce, after the formal/ Judicial separation?
I am currently redundant – so wish to avoid going into debt – hence I am trying to identify what action we need to take, so we may then (hopefully) work with one Lawyer and one financial specialist if necessary to work with us now and over the next 2 years representing Maria in the UK.
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| A. |
David
To answer your questions:
Separation – to go for a straight forward formal Separation Agreement. If you were to reconcile later then there would be no difficulty in incorporating a provision in the Separation Agreement with respect to this.
Your wife’s representative – I would suggest that this needs to be a Solicitor. It may be possible to find a firm of Solicitors who specialise in international issues, particularly Argentinian or alternatively it would be possible for a firm of Solicitors to retain foreign Solicitors if necessary.
Capital gains and tax – it will probably be necessary to take specialist advice regarding this matter.
Your own advice - you would need a Solicitor who would have access to indexes of specialists if needed.
Failure to divorce – the implications of this will really be dependent upon what steps you take on the separation, e.g. severance of all assets, making of new Wills, final terms of separation. If some of these matters are left in limbo then this could have a significant affect should you not divorce for some time.
It is unlikely that this is a case suitable for you to have one Solicitor and one Financial Specialist unless you go down the road of trying to resolve this via mediation. I have to say that it is extremely unlikely that this matter can be sorted out within the time scale you have given of one month.
It is not always the case that assets are divided 50/50, particularly if there is an unemployed wife and young children on the scene. Each case is decided on its own merits within the guidelines laid down by the Court. It is also necessary for there to be full and frank disclosure of the financial position to each other and to the Financial Advisors, including details of pensions. These can take some months in some cases to obtain.
You will realise that the complexity of the situation makes it impossible for me to do more than make some pointers, which in no way are a substitute for the full legal advice you require in this matter.
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Date: 15 Apr 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My partner has a decree nisi but thinks he may have to go to court to finalise the financial settlement. How long does this process take? We are keen to get married and would like an immediate settlement. What options do we have to speed this up?
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| A. |
Fiona
On the divorce question, if your partner is the Petitioner then he can apply himself for Decree Absolute. On the assumption, however, that it is his wife who has petitioned for divorce then it will be six weeks after the Decree Nisi before she can apply for the Decree Absolute and then a further three months after that before he is able to apply himself. It is a more complex application for him and if the financial matters have not been settled it is likely that the Court would decline to make Decree Absolute until such time as matters were settled.
How long this will all take is going to depend what stage matters are at now and how likely it is to reach agreement. He may wish to discuss the possibility of issuing his application for Ancillary Relief. This will then trigger a Court led time-table. It will depend on how busy your local Court is, but I would suggest that to go from scratch until the final Hearing could well take approximately nine months. Another alternative would be for you both to voluntarily make disclosure to each other and then with the benefits of legal advice prior to reaching an agreement. This may well be in process in any event. If so, I can only suggest that you respond to any requests for documentation or information from her or her Solicitors as soon as possible so that they may be in a position to consider any offer that you make as soon as possible.
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Date: 8 Apr 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My marriage to my husband broke up about 12 years ago, although as we had 2 children (then aged 8 & 9) we stayed together. I moved back in with my husband about 4 years ago, as i was having problems paying for seperate accomodation. (My husband was not providing any financial support). My husband has now advised me that he would like me to move out of the marital home, and has offered me 20,000 pounds, which he advised is the most i will get. The house is worth 100,000 pound and my husband receives a very high salary. I have spent most of my life as a housewife and have thus contributed little financially to the mortgage etc.
Could you please offer some advise on what i would be entited to (financially) in the event of divorce.
Many thanks,
S. Anderson
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| A. |
Sarah
The financial aspect of the settlement upon divorce should perhaps be looked at in three parts. There is the question of capital provision, income provision and also pension provision, if appropriate.
I do not have enough details to advise you what you should be receiving in terms of money. You should not however feel that you are going to be penalised because you have been a housewife and not contributed much towards the mortgage and other bills. The current feeling within matrimonial law is that the contribution of a housewife and mother should be viewed at least equally to the contribution of the bread-winner.
I therefore feel that you should be looking for maintenance from your husband, together with a lump sum provision or alternatively you retaining the matrimonial home, together with some pension provision (always assuming that he has a pension).I strongly recommend that you seek the assistance of a local Solicitor who can advise you more fully in light of further details being provided.
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Date: 2 Mar 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I want to divorce my husband of 29years the reason being we have drifted apart and he keeps threatening to kill me, I can't take anymore I need to live my own life. I would like him to accept a settlement as I do not wish to sell the house. Our children are 27, 25, 21. I have been the sole breadwinner for the last 7 years as he has been claiming incapicity benefit. The house has and still being renovated, my husband has supplied the labour but I have paid for everything. He does not contribute to any household bills either. Can I force him to accept the settlement of £30k the house is worth about 175K the exsisting mortgage is 41K endowement will not be enough to pay off the loan at the end of the term in 15 years time. So I will have to taken on the 40k mortgage plus the 30k settlement. I am within my rights to get him to agree?
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| A. |
You can't make him agree with you only a court can do that by making an order. The only way to get the court to make an order is by applying for ancillary relief within divorce proceedings. |
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Date: 2 Mar 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My wife and I separated Oct 2000.
In January 2002 she served divorce papers on the grounds of adultery, and while this was not the cause of the breakdown, I agreed since it seemed the quickest way to proceed and sort things.
She stays in the former marital home, and I pay for everything, when I first moved out, I paid £1400 per month, plus I serviced ALL debt payments which were all in my own name since my ex to be has never liked or wanted to work since falling pregnant with our first. We have 2 children aged 8 and 10.
The payments have crippled me totally financially, and I have had to reduce them to about £750 plus about £1000 in debt servicing payments. This leaves me very very little to put into a new relationship.
The marital home is valued at about £200,000 and the mortgage is about £75000.
My wifes new partner moved in in November 2001, though she continually denies that he "lives there" as he has his own house. I employed a PI for a very short space of time and they concluded the same, that he lives there, and as he has no obvious income, she is supporting him (and she doesn't earn !).
The kids say he doesn't live there (obviously been told to say it) but when asked how often he goes to his own home, they say "oh hardly ever".
I threatened to make myself bankrupt to try to make my wife see sense financially and allow me to raise some equity out of the property, but she is having none of it as she says she is being advised that she will get the house anyway and wants more money per month for her as well as the children.
I'm really getting very stressed with all of the debt, and while I maintain the payments each month, it is at the expense of any sort of life.
The new CSA calculator on the site reckons I will have to pay about £470 per month, loads less than I do now, but she will undoubtedly then not pay the mortgage so I will just get a worse credit rating still when the mortgage falls into arrears.
If I have to prove cohabitation, then presumably this will involve a PI for a longer period of time (how long ?) which I don't for one minute think I can afford. What else would the courts consider as "proof" ? I seem to be getting totally taken for a ride.
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| A. |
I do not have full details of the situations of you and your ex-wife, and this means I can only give limited advice.
I think that it may be in your interests to refer this matter to the Court for their decision upon the property and financial issues as part of the divorce. If it was feasible for her to downsize, there certainly seems to be sufficient equity in the property for her to do so and the Court may feel that this is reasonable.
The children are coming up to an age where she can be expected to be at least
re-training herself or getting some kind of part time job in order to put herself back on the job market.
The question of cohabitation is always tricky. There are various tests that are applied, and it is not always conclusive that the other person has his own home. I think that you will probably need a PI for longer periods than at present. Other tests include what friends and neighbours think of the relationship (are they regarded as couple), whether their finances are mixed. However, if her new partner was in a poor financial situation, the mere fact of cohabitation may not be as relevant here as it would be in some other cases.
I also do not have details of any pension funds and this could also affect the final settlement. I do not have enough information to advise you as to whether or not you should reduce your financial payments to your wife each month. However, it is possible that you could possibly consider just paying the mortgage and perhaps some other payments rather than making any reduced payments directly to her. This would then safeguard your own credit situation.
Because of the complexities of this situation I strongly advise that you seek independent legal advice regarding this matter.
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Date: 2 Mar 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My partner and I are both separated from marriages though neither of us are divorced yet. She lives in her former marital home, and pays all mortgage payments though it is still in joint names, while her husband lives with his new partner, though denies it, and claims to stay with his sister which we know is not true.
About 18 months ago he wanted off the mortgage, so decided to transfer the home to my new partner for nil consideration since he had previously raised 12,000 out of the equity to clear his debts (my new partner still has hers in her name from the marriage), and there was very little equity in the property. At the very last minute, and because the transfer process had taken so long, he decided he didn't want to go through with it, even though he had signed the transfer documents (and had them witnessed) for nil consideration. He wanted some money too now !
Nothing more was said and nothing happened as my partner refused to now consider paying him when he had agreed nil consideration.
Things were totally quiet from then until last week.
We received a letter stating that he wants a divorce on the 2yr separation grounds, though he reserves the right to cite adultery if my partner refuses, but he also wants 50% of the net equity in the property despite making no contribution at all, either to the property or my partner despite him being a teacher and her working in admin.
Can he do this ? It seems totally unfair considering his behaviour and the fact he has made no payments on the property.
Finally, he stands to inherit a significant (large 6 figure) sum from a very wealthy aunt he has, and while there can be no saying when, she is old and frail. Can this be taken into account or are their rules which determine whether or not my partner can make a claim for compensation for releasing him from any obligation to pay her if and when he does inherit ? It seems wrong to try to make a claim, but when he is being so totally unreasonable and morally unfair, it seems like an only option.
Any help would be very much appreciated.
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| A. |
Andy
The rules surrounding financial settlements following divorce take in many factors. I have very little information about your partner’s finances, so I only give pointers. It may be that the court will take into regard his position re pulling out of the transfer at the last minute. This may depend on whether or not he took legal advice about the terms of settlement. He will need to be honest about his intentions regarding cohabitation or the terms of a settlement could be overturned at a later date. Inheritances are not usually taken into account unless it is certain that the person will receive it. As a teacher, the issue of their respective pensions must be raised, as his will be an index-linked final salary scheme. Much depends on the length of the marriage, and other factors.Your partner should take independent legal advice.
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Date: 28 Feb 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband has recently walked out on me after 2 1/2 years of marriage. The house we have purchased is in joint names, but the deposit of around £45K was made with my money which I have received from my fathers will. Over the course of our relationship of 11 years I have paid out a lot or borrowed money on his behalf. I even paid for our whole wedding on my own. He earns more than me, but is keen that we split the value of the property 50/50. I was not sure if it would be too much to ask for my inheritance back and then split the equity after this? We do not have any children, so it would be a clean break settlement. He is talking of our selling the house splitting the property (most of which I paid for) and living separately for a while - perhaps gettign back together after! I am not sure of my rights and he might bully me into a settlement that is not fair? Should we get the agreement legally drawn up if we do decide the split ourselves? If we did not could he come back and claim more money? Please help.
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| A. |
The court in a short marriage will take great weight from the fact that you put in the majority of the equity when you purchased the property and the general rule is that you leave with what you put in plus a division of any jointly accrued assets.
if he will not accept your proposal I suggest you instruct a Solicitor to deal with the financial side of the divorce.
This would leave you free to deal with the divorce part of the divorce yourself. |
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Date: 28 Feb 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My fiance (age 40) & I are both divorced. He is still trying to sort out property and financial issues. The ex wife (age 55) still lives in the former matrimonial house along with their son who is 16 but planning to continue education until he is 18. My fiance had been paying half the mortgage and £200 per month for his son as had been mutually agreed. Recently his work slackened off and he was unable to pay as much as had been agreed consequently there was talk of the property being repossessed.
The house was on the market and a buyer lined up but she took the house off the market without any consultation. However, now the ex wife has obtained legal aid and a solicitor who wants full disclosure of my fiance earnings and outgoings as he has stated he will get all he can for the ex wife. He does not have a solicitor due to the cost factor.
We were due to purchase a property together, however, as there are registered debts on the former matrimonial home mortgage, my fiance cannot now be included on our new home.
My fiance did have a number of high debts which I have since sorted by obtaining a loan however he is still responsible for making these payments.
We are concerned that any orders made by the court for payments will affect our lives ie. will they recognise that he has debts to pay even if they are in my name, he will still be contributing to the mortgage on our house even though it isn't in his name. He is more than prepared to pay what is required for his son but feels the ex wife is in a position to downsize the property in order to free up some capital.
Also, we do not know if it is best to avoid getting married until this is all sorted. Would our marriage mean that my money/earnings would be looked into?
Can you assist?
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| A. |
Firstly, and this is very important, you should not get married until your fiancé has made his own application for ancillary relief within the divorce proceedings. The relevance of this is that if he does not do so then his ability to apply for certain Orders can be severely restricted and detrimental to him,
The actual application for ancillary relief is relatively simple and has an £80.00 Court fee. Your fiancé must be aware however that it will trigger the Court to start off a time-tabled process which he will not be able to stop. It would however be in his best interests to start this off sooner rather than later.
Your own financial position will be considered as his cohabitee. Since you wish to rely on the fact that you have taken out loans to assist him there really is no option but becoming involved with the disclosure of your own financial position. I think the Court will take into account the factors regarding his financial position so long as you can both provide proper evidence of this. If downsizing for his ex is a viable proposition then I think it is a likely Order for the Court to make.
I obviously do not have sufficient information regarding the situation of your fiancé to make any further comments. I would however, again, draw your attention to the warning in the first paragraph.
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Date: 27 Feb 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband has just walked out,leaving myself and my 17 year old daughter in our home. When he left he took half our savings. I have an insurance policy due which I have been paying. Is he entitled to any money and also if I save can he get any of it. He is paying me £280 per month for my daughter but earns 27,000. I earn just £16,000. he says I can stay in the house but I am paying the mortgage(he is repaying a loan in his name )until my daughter is 19 and finished education. Should I see a solicitor?
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| A. |
I would advise that you see a Solicitor to at least get an initial opinion on what you should be looking at as a final outcome for you, taking into account all your individual circumstances. The main things to consider is what will you need to rehouse yourself when your daughter finishes college, Does he have a pension that you can look at to balance the assets etc. You should start by adding all the joint and sole assets you have together and coming to a 50% figure. You then need to work out how to achieve that percentage. |
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Date: 25 Feb 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
hello i a not getting on with my husband after 17years of marriage , we have 2 children 14 and 10 years old and i am thinking about a seperation but we have a joint mortgage and joint bank accounts and rather a lot debts as we can just about manage now so how can we think about living seperately ? i want to stay in the house and i work fulltime and earn 14500 , i can probably afford to pay the mortgage and bills but nothing else (loans etc) so how do i go on from here ? would we have to sell the property ? as then what could i afford to buy then as our mortgage is 55500 and the house is probably worth 95000 now and i could never buy anything in the area for 55500 so what can i do ??? pease let me know ifyou can thanks.
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| A. |
I would first of all recommend that you see a local Solicitor to take full instructions regarding the financial situation of both you and your husband. I agree on the face of it that it does seem difficult to stay in the house with all those debts, however you may have some entitlement to Family Tax Credit which could assist as would maintenance from your husband. Also, if you husband was agreeable to assisting as much as possible, in order to give the children some security for the next few years then this could also be a further way forward. I would not, at this stage, discount the possibility of staying in the house until you have taken more detailed advice upon this question.
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Date: 20 Jan 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My wife of 18 years left to live with a new partner. We have two children, a daughter 17 who lives with my ex, son 15 who lives with me both in full time eductaion. My wifes new partner has a full time job, she has a part time job (and scope to do full time!!). I currently live in our house My wife, partner and daughter live in rented accomodation. The house is 4 bedroomed, one room I have to use as an office, room each for me and son, one spare for when daughter comes to stay. As well as paying all the bills, I contributed signifcantly more to the marriage than most men with full time jobs. Given that my wife is living with a new partner and daughter has a part-time job, what level of maintenance or equity split am I likely to be facing?
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| A. |
If the Court are asked to deal with financial and property matters, they have in mind criteria under s25 Matrimonial Causes Act 1973. These include full examination of the parties ages, contributions, capital,earning capacity, pension position, overall financial details.
Without substantially more details which are beyond the scope of this question, I cannot really guess at the likely orders. Certainly a starting-point would be 50-50, of all the assets including pensions. The court would then decide if and why this should not be followed. She would be unlikely to be awarded maintenance as she is cohabiting.
The children’s maintenance would have to be decided by the CSA if it can not be agreed. If she earns less that you, you may end up paying more that you receive.
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Date: 10 Jan 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
I've moved out of the family home into a room in a shareflat because of my husband's unreasonable behaviour. We've been married 17 years. We have two children aged 13 and 15 years old, a boy and a girl.
I currently pay all the household bills because my husband works full time but only earns £8,000 pa (he used to earn well over the average age, but left his well paid job due to depression and I had to go back to work and leave my children with him or the house would have been repossessed). Should I carry on paying all the household bills now I've moved out, even though it's pushing me further into personal debt? At the moment my personal debts are climbing monthly, but he has no debt because I'm paying part of the mortgage, the bills and for all the food. My understanding is that personal debts can't be included in a divorce settlement, is that the case?
He wants to keep the family home and the children when we divorce, but even if I gave him the entire house, he couldn't actually afford to live there without receiving about £1,400 a month from me. I've suggested that we split the equity in the house and he could rent somewhere and pay for his upkeep and part of the family expenses from this money, I'd happily give him some maintenance (but can't afford vast sums) - he has said that I have to pay for the children to stay in the house, but I honestly can't afford to keep subsidising it to this extent, I'm getting to the point where I can't afford to pay back the loans.
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| A. |
Peta
I think I responded to your question back in December 2002 and I am sorry that matters have not progressed much.
I think in my advice then, I said that you were paying too much. I would again urge you to very carefully consider how much you are paying him. It is not true that personal debts cannot be included in a divorce settlement, particularly in this case where you have clearly incurred them to enable him and the children to stay in the house. Again, as I said before, you must keep all evidence of what you are paying out.
For three children, the CSA under their new scheme when they bring it in would expect you to pay something like 25% of your net pay (after deduction of tax, insurance and pension). I would suggest that this is a figure closer to what you should be paying your husband in total every month. It would be in your interests to make this payment directly to the mortgage to ensure that it is being paid. I would urge you to consider this matter carefully with a Solicitor and take the necessary steps.
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Date: 9 Jan 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My husband and I separated in Feb last year because of my adultery and he issued divorce proceedings which I didn't contest, the acknowledgement of service form has been returned to the court
Privately we agreed a financial settlement that I signed in June on the understanding that he would not name my lover and I would not contest
I was advised not to sign the consent order as forms E had not been exchanged and it was felt I could get more. In preparing form E I have requested some personal papers insurance doc’s etc to be handed to me, and have been told that I took everything when I left. I did not.
My husband then informed my solicitor that he had sacked his solicitor and is in the process of finding another. That was back in November and I have subsequently been informed by his children from a previous marriage that he has left the country to start a new life, and that they do not know where he is.
I am not sure if this is true or not, but have been advised that it would be too costly to pursue him any further and will have to divorce him for unreasonable behaviour without his input unless I can find him
Is there any thing I can do re our finances, which are all in his name? there is no property only about £90,000 cash. Other than my insurance but unfortunately I do not remember the name of the insurance company
Regards
Sharon
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| A. |
Sharon
I have very few details about your situation and it is difficult to advise. I am unsure how much legal advice you have taken. It is possible to ask the Court freeze the £90000 but you will need to act quickly. If he is using the money as his income then he will very quickly contact you when he can’t get access to the account.
You may have to write to every insurance Company that you can think of to trace the policy. Can you get some old bank statements to try to trace payments made?
I would recommend that you see a solicitor as soon as possible to discuss the matters especially the freezing order.
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Date: 4 Jan 2003
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
my husband and i got married in singapore before he came in UK. After few months he got other girl pregnant and they r living together in UK now. Can i ask for a support from him as a legal wife and can he file the divorce there in UK? I am in canada now and if he will be able to get the divorce in UK, is it valid here in canada?or should i be given the divorce certificate too? thanks
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| A. |
Anna marie
I don’t have enough information to form a view as to whether or not you would be entitled to financial support from your husband. There is certainly a notional liability on the part of both of you but many more details would be needed.
On the divorce question, each country has it’s own rules and views about the validity of divorces in other counties. I would guess that a divorce in England would be valid in Canada. The Court will send you a copy of the divorce papers, including the final Decree Absolute.
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Date: 2 Jan 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband left the marriage and family home two years ago. He left me with large amounts of debts that where worth more than the equity in the house. I am trying to get him off the mortgage but he refuses to sign the papers he said he is entitilled to half the equity since he has left. he has not paid any money to the house or debts in two years doeshe have a claim
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| A. |
The answer is highly unlikely. The fact is he left and has not contributed to the increase in the equity over and above the debts he left for you to pay. if this ever reached court he would in my view be very hard pressed to get anything. That said it would be expensive to take him to court to get the order. it may be prudent to make him a cash offer just to get him off the mortgage and deeds. I would then instigate the divorce and have an order by consent drawn up to ensure he can make no further claims. |
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Date: 30 Dec 2002
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
can a full application for financial provision be made to the court if an application is currently before the childrens court for custody of the children
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| A. |
Ron
An application can be made in these circumstances but it is unlikely that any final order can be made until determination of the childrens’ residence.
Whether or not it is sensible to apply will depend on how far-advanced the children matter is and how long it will be until final hearing. The reason for this is that the Court time-table the financial application and a lot of documents will have to be prepared. If there will then be a long delay before the financial matters can be decided, there will inevitably have to be up-to–date disclosure. This leads to further expense and duplication of documents. It is also helpful within the financial application for all parties to concentrate upon the relevant issues and to have such a major point unresolved for any length of time is not desirable.
If you have a solicitor I would suggest that you discuss the time-tables for both applications and decide thereafter.
Hilary
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Date: 29 Dec 2002
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
My husband has been having an on-off affair for at least 18 months and I foolishly believe him when he says its over. He has now taken to staying over at her place when he pleases. I tracked him down at her house on Xmas day. I have brought up his child who is now 15 and lives with us both - her mother is dead. I want to keep the house and have repeatedly told him to leave but he won't go. Can I legally throw him out if the house is jointly owned ? We have been married for 3 years. He allows the female to phone my house which I think is mental cruelty - can you help ?
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| A. |
Pauline
As the house is in joint names you cannot throw him out. It is also doubtful that you would have grounds for an injunction. I think the only option is to consult a solicitor with a view to commencing divorce proceedings and thereafter a financial application.
I cannot comment on the likely outcome of such an application as I do not have any information about your respective income and capital positions.
Hilary
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Date: 10 Dec 2002
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
Hello,
I'm currently trying to divorce my husband of 17 years, we have two children aged 13 and 15 years old, boy and a girl.
My husband is in a poorly paid job (takes home about £800 pm - in London). I currently pay all of the bills and debts on the family home which amounts to £1,000pm and I also give him £400pm for food.
I've recently moved into a share flat and I'm trying to get a divorce, my husband refuses to co-operate in any way. My husband wants to stay living with the children, ideally I'd like to have shared care, since I currently have to look after them several times a week anyway, I need a home to take them to.
The problem is that I can't work out how to pay for everything; my husband refuses to consider selling the existing property which has about £150,000 of equity, because it wouldn't be enough for him to afford to buy a new house on his salary. He can't afford to pay the bills even if I don't ask for my share of the property until the children leave home.
I genuinely can't afford the house and my room in the flat, but I can't live in the house anymore. I'd really prefer to have a small place that the children could come and stay in some of the time too, this one room is unsuitable for children.
So the main questions are:
Can I force him to sell the family home?
Is there any alternative if I can't afford to pay for two homes? Can he claim some kind of benefit to enable him to stay there?
I'm running up debts on credit cards to pay for his household expenses, christmas presents, can these debts be taken out of the equity of the house if/when it's sold?
Thanks for any information you have...
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| A. |
You first need to establish with whom the children are going to live. At their ages it will be largely up to them, so far as is practical.
I do not have much information about the finances in this situation but it does strike me that you seem to be paying too much, if it is the case that you pay all the outgoings and £400, leaving him with his salary as well. The court, within the financial aspects of divorce, can order that a house be sold, but first consideration will be given to housing the children. This does not mean that they necessarily have to stay in the family home if it is practical to sell and buy something more modest. I would suggest that you take a robust view of the amount of money he really needs on a day to day basis and alter the payment accordingly.
It may well be that he is entitled to Working Families Tax Credit which will increase his income. There is hotline to call and also a Web site.
It is possible that the debts that you are incurring will be credited against your final settlement. Really however it is not sensible for you to continue to borrow in this way. Make sure that you retain full documentary evidence of the debts and your expenditure generally as you may be called upon to supply this later.
I would suggest that you also push the divorce on as quickly as possible so that if necessary you can make an application to Court to decide the finances
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Date: 3 Dec 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been married for 7 years and the mortgage is in both our names.
I have told my husband that I want a divorce.We have had no physical relations because I have not wanted to for 2 years.
I have met someone else , 3 months ago, who I want to be with but have not told my husband to save his feelings.
If I left now to be with someone else
would I lose any rights to the property?
I had my own business and my income went to pay bilss etc.the mortgage was paid from my husbands account.
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| A. |
You are entitled on the fasce of it to an equal division of the family assets and maybe more if you have children. If you intend to live with your new partner then he may argue you should receive less but i cannot see that would work as it is not about housing needs but asset division as you both appear to have contributed equally to the increase in the asset values. |
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Date: 29 Nov 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife and I have been separated for 3 years. We have a house (in joint names) on which I am still paying the mortgage. A year ago I bought my own flat and pay the mortgage on that also. Our house is worth around 300K with around 40K of the mortgage remaining. My flat is worth 120K and I have a mortgage of 90K on it. We have 2 children aged 13 and 9. There is no way my wife can buy me out of the house as she doesn't earn enough to buy me out and take on the mortgage and we don't want to sell the house as this would be disruptive for the kids. We intend therefore to split everything when our youngest is 18. My question is what is the CGT position as I (we) will have beneftied from considerable increase in value of both properties when the time comes to finalise any financial settlement?
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| A. |
The matrimonial home will have no CGT to pay as it is exempt. The flat is not a matrimonial home and therefore in my view CGT will be payable on the disposal of this asset. I would however check with a tax specialist for a more detailed view on the disposal. |
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Date: 29 Nov 2002
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
Hello. I recently find myself without any legal representation for a forthcoming FDR hearing and subsequent legal advice. In my current financial position I cannot afford to seek help from another legal firm. I have now alternative but to try represent myself. Please can you advise on how I can best go about this to ensure I dont make matters any worse than they already are. Any advice or guidance would be much appreciated. Thank you
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| A. |
Adrian
I assume that you have clarified already that you are not entitled to Legal Aid.
Arrange to collect your file from your previous solicitors. Go through all the papers carefully and check that both sides have complied with all the directions made at the FDA. These may be for valuations, documents etc. If all the crucial information has been disclosed then you should be considering the terms of any offer of settlement and putting this in writing to the other side and marked “Without prejudice save as to costs”. The reason for this is that if the matter goes to a final hearing and your wife fails to better the offer you have made, then the court is more likely to award you costs. The same applies to any offer she makes that is marked with this heading or any offers that you both may have made that are called ‘open ‘ offers.
If you are the applicant, then at least 7days before the hearing, you will need to file with the court, copies of all offers proposals and responses. At the hearing you will have to serve the judge and your wife’s solicitors a notice of your total legal costs for the financial application. The court office may be able to let you have the form of this(form h).Take with you to the hearing all your papers in an orderly and indexed file as well as pen and paper. Try to make a note of everything that the judge says. The purpose of the hearing is to try to achieve settlement if possible and he may well pass comment on the offers that have been made and what he feels are the terms of likely settlement and send you all out from time to time to discuss matters.
I have briefly touched on the subject of costs of the matter overall. These are complex, but the usual rule is that the loser bears the costs of the successful party ( as well as his own ). These costs can be at an indemnity rate, as well as interest on both the costs and the actual financial award. You should consider any advice given by your previous solicitors as to both the costs implications and the terms of settlement.
Go to the hearing with and open mind, and be prepared to give your arguments to the judge when asked.
It may also be helpful if you went to your local library to see if there are any books to assist the layman,e.g. Of particular assistance would be to read through Section 25 of the Matrimonial Causes Act 1973 as this sets out the criteria that the Court will be looking at when considering the orders to make.
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Date: 28 Nov 2002
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
I am British citizen living in spain and my husband lives in England. I have filed for divorce because of his desertion using an English solciitor.
My husband has told me that I will have to pay for half the mortgage plus credit cards which are in my name (the bills are sent to him in England). I am in Spain because this is where my husband wanted myself and my 14 year old daughter to be. Now he has another relationship and we are left here in Spain. I only earn the equivalent of 70 pounds a week here in Spain altho I constantly look for other work. I could not possibly pay what he says I will have to pay!! I have no property in England and no savings. I am very concerned as to our future. I had a good job in England which I relinquished as he said he would look after me. the property in Spain is in both names but is mortgaged. I dont know how to approach the financial minefield. Please can you advice me as I am most desperate at present.
Thanks
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| A. |
Anita Newman-Moore
This is a fairly complicated situation and there is a great deal of information that I do not have. However, I assume that the divorce is in England. This means that you can make an application to Court within the divorce proceedings for the financial and property matters to be resolved. This is quite a lengthy process, but you can also put in an application for what is called Maintenance Pending Suit . This would be heard much more quickly and could result in an interim maintenance payment being paid to you by your husband. I do not have any details of his finances so I cannot comment on how much money you would receive.
You can also possibly make an application for maintenance for your daughter, even if he is not her father and, again, this can be made at an early stage to assist you financially.
I would strongly suggest that you consult your present Solicitor about the possibility of applying for Legal Aid and then also about making an application to Court to address these urgent financial matters.
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Date: 22 Nov 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I discovered in early October that my wife had been having an affair. One of the strains on our marriage had been her inabilities as a wife and mother which caused me to undertake more and more of the daily routines as well as trying to hold down a full time job. Because of this, I am determined that I will remain in the Family home and be the parent with the main responsibility for the children. (having already given up one family home and a family to be with this woman) We have discussed the possibility of a reconciliation but she is not able to comtemplate or work to such an end. She works part time with an income of about £350 per month. She wants to leave but it is not economically viable - she doesn't really want to take on more demanding work at this stage and she wants a place where the children can be accommodated. I am unable to fund anything for her and am therefore at my wit's end. I have a wife who no longer loves me, who is staying in the matrimonial home and is unwilling / unable to either work at our relationship or set herself up independently. Any ideas as to what my next steps could be? Can I start the divorce proceedings off with issues around the family home and children so undecided? This state of limbo is dragging me down. Thank you in anticipation of some help.
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| A. |
If you feel that divorce is the only option then bringing the proceedings will allow these issues to be addressed as the court will have to look into both the financial aspects of the divorce as well as the arrangements for the children. As they are so closely linked they will no doubt be dealt with together as the court cannot make a decision on the finances until the childrens residence is sorted out. You can handle the divorce part yourself which will save you about £500.00, but I would advise you instruct a local solicitor for the children and finances. You may be elligible for legal aid. |
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Date: 4 Nov 2002
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
i seperated from my wife 2 years ago, after 9 years of marriage. she had an accident at work before we got married, leaving her disabled. she has never worked or looked after the home. during our marriage i paid for everything, and her money was not used. she is getting 14K in benefits and i earn 100K plus. she is tkaing me for adultury and divorce proceedings have started. I want a clean break, and she is still living in my house, and me paying bills and mortgage (which i have been since i left 2 years ago), Please please can you telll me how much approximately a court would probably expect me to pay on a clean break or as maintenance.
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| A. |
It is probably helpful to look at the criteria the Court examine if they are asked to make a decision following divorce and to sort out the financial and property matters. The Court looks at both parties respective financial positions including earning capacity, pensions etc., standard of living, age, physical and mental disability, length of the marriage, contributions now and in the future to the family's welfare and conduct, if it would be inequitable to disregard it.
I do not have sufficient details to properly comment upon the situation. I would say that in the circumstances it is unlikely that there would be a clean break between the two of you, unless you were in a position to let her have so much capital that this would effectively provide for an annuity or similar for her.
The starting point for maintenance is often taken as one third of the joint incomes of the parties, although this is only a starting point and not a rule.
Without further information as to your financial position, contributions to the capital and family, and other details, it is difficult to give a precise answer.
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Date: 17 Oct 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I'm just about to start divorce proceedings against my husband. I've just moved out of the family home into a shared flat. I have a boyfriend, who I've been seeing for three years. He's currently away working in Africa for one year, he's not going to come back to the country for the whole year. Can my husband/his lawyer force me to take my boyfriend's finances into account when settling a divorce claim? He has quite a few shares and long term investments. He only left a week ago, and whilst we do intend to get back together on his return, a year is a long time, I have to consider the possibility that he'll meet someone else whilst he's away. I currently pay for the family home (mortgage) and support my children, as well as pay for my own rented flat. Thanks for any advice.
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| A. |
The court can take his income into account wen ndealing with maintenance but only if the relationship is established which yours is clearly not.
My view is that his finances are irrelevant to your case. |
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Date: 17 Oct 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I met my present wife just under 1 year ago and we
got married 2 months later. I paid for all the
wedding and honeymoon, dress etc as she had no money.
We have now been married 10 months and we have
decided to get divorced.
She has now left the home.
She kept things from me before we got married such
as being abused as a child and being raped and
suffers from depression and mood swings.
I owned my home 16 months before I met her and have
paid all the mortgage since she moved in 10 months ago.
She wanted to be a lady of leisure and so I gave her a
salary from my own company. She has now left the home.
I am going to start proceedings but have just found
she has cleared out the joint bank account of £500 and
also the savings account of £4000:00. All of this
money was money I had saved and worked for. she had not
contributed to this.
Can you tell me if she is entitled to any of the house ?
How can I ensure that the money she has just stolen is
taken into account once the divorce goes through ?
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| A. |
The general rule with short marriages is you get what you came in with, s no I would not have thought she would be able to win a claim on he house asset.
As far as the money she has taken is concerned there is very little chance of getting this back and would let sleeping dogs lie. Indeed that could form part of your offer of settlement with her to ensure a clean break for the future. |
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Date: 30 Sep 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
The terms of the divorce settlement required me to pay £3,000 per month to my wife (£2,000 of which is for her and £1,000 for the maintenance of 3 children).
At the time of the Court Order the payment amount to 65% of my net income. I am also required to pay for my children pocket money and other school related expenses.
In respect of the joint property, 90% of the proceed from the sales is to provide for a property for my wife and children, although I will have 20% claim on her property when it is sold after all the children leave home.
I was given permission to apply as to implementation when circumstances changes. At the moment due to the economic condition the monthly payment to my wife (inc maintenance for the children) amount to 85% of my net income. What is left of my monthly net income is not sufficient to provide accomondation and living expenses for myself. I would therefore like to know whether I can apply for a reduction in the payment and how I can submit such an application without using lawyers.
GC
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| A. |
You can apply for a variation of the maintenance order. You will need to obyain the forms from the county court where you were divorced. The application consists of a notice of application and an affidavit setting out your current circumstances and why you need the order to be varied downwards. |
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Date: 30 Sep 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hello. My husband and I have recently separated after living together for 5 yrs. We were married for just under 2 of these. Our house had belonged to my husband and his first wife for several yrs before they split up - at which point her name was taken off the mortgage. He always refused however to put mine on. So the house is solely in his name.
I always paid half of all bills inc. mortgage. After I moved in - we completely redecorated, carpetted and furnished the house. My husband was deep in debt when I met him and because he was unable to get a loan - I agreed to a joint loan of £10K to pay his debts off. We do have an overdraft on our joint account and owe his mother some money. We do have some wedding present money in a savings account - in my mother's name.
My question is : am I entitled to anything financially? What can I claim for? He is also a civil servant, I have heard that I can claim part of his pension?
Also - my husband refuses to let me divorce him for unreasonable behaviour - so to speed matters up I was quite willing to organise it all myself - with him as the petitioner. Does this have any bearing on what I am entitled to?
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| A. |
First of all you are in my view entitled to 50% of the equity in the house from when you were married to today's date as you clearly have made an equal contribution to the asset.
As for the pension, you may be entitled to a percentage share of 2 years worth of his pension contributions, which will not be very large and I don't think it would be worth it.
As for the divorce it does not matter who divorces who with regard to financial matters unless financial conduct is being alleged which would be serious enough to reduce the other parties settlement.
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Date: 24 Sep 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hi
I am trying to get divorced I use the term carefully as the ex-wife to be is being very difficult in all areas from false allegation to making false financial claims.
I have been married for aprox 17 months and the property that I own was brought for and paid for (totally) before we were married and I have been told that the court uses the following guideline which is, with a married for less that 2 years both leave with what each have put in.
In this case the ex-wife to be has submitted a Form E (against the advice of her solictor) can you please tell me where the guildeline is so that I can sight it and also how do I stop her from making pointless claims like this which seems to be increasing my costs, wasting my time in court and stop her from being a nusiance generally
Thank you
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| A. |
I am afraid that she is entitled to make a claim but whether it would be succesful is another matter. The only weapon you have is costs. If she loses then she has to pay your costs, so it would be advisable to issue a calderbank letter now setting out your offer of settlement which presumably is that each party walks away with their own assets on a clean break basis. |
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Date: 13 Aug 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
how do i find out if i qualify for legal aid?
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| A. |
The easiest way is to use our legal aid calculator in the Legal Centre or you can go to any Solicitor that undertakes legal aid who will be able to advise you on your merits.
If you are seeking legal aid for a divorce, then it is unlikely you will not qualify if you are working. However you may get legal aid for any financial disputes or for children. |
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Date: 8 Aug 2002
Answered by: David Leadercramer, Solicitor
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| Q. |
I am now seperated after 9 years and have lived apart for 2 from my wife. Her solicitors are claiming that she is entitled to a 50% share of all my pension from the time I started it - 6 years prior to the marriage - and from an endowment i began some 3 years before the marriage. Is this correct as i ahd been led to believ that only the money in marriage would be looked at?
Further, we have two properties, all along in my calculations I have been advised to include the costs of sale of these to realise the true cost. She is now arguing that this isn't the case and that the costs of sale doesn't need to be considered as the properties are being kept.
Finally, when does the finanacial'clock' stop? When we have a decree nisi or until we reach a financial argreement, at this rate I won't be able to afford to pay her and remain in our home due to propert rises.
Yours sincerely,
David Kendall
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| A. |
Until quite recently assets acquired prior to marriage or post separation were not really distinguished from those that were accumulated during the marriage itself. but the law changed just under two years ago in this respect. However I think that there is a good case for trying to exclude that element of the pension that accrued prior to marriage together with the element of the endowment that was similarly accrued prior to that time.
I also agree that notional costs of sale should be included -after all the properties will be sold at some point in time even if not now. I normally take 3% to include sale costs and solicitors fees and disbursements.
The clock as you put it does not stop until the court considers the matter at trial or there is an earlier settlement.Post separation acquired assets do have a slightly different status but the quicker you sort this all out the better |
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Date: 1 Jul 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hello,My ex-wife has a court order(form A)for us to attend a first hearing in Sept.I have just recieved a Calderbank offer which I intend to accept.What is my next step and do I still have to attend the first hearing and submit Form E.(financial statement)?
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| A. |
If you wish to accept the Calderbank offer you should go ahead and do so. It may be that her lawyers will want a form E completed to rovide for disclosure before the consent order is drawn up, I would check with them first. However if you do have to complete Form E we have a self calculating Form E on the site which does all the maths for you and we give free advice on the completion of the form. |
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Date: 26 Jun 2002
Answered by: David Knox, Professor of Sociology
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| Q. |
I am in the middle of conducting my own divorce and am the stage of awaiting my decree nisi. I am 27, husband 24, married Jan 2000, separated as of August 2001. The grounds for my divorce are unreasonable behaviour, my husband has never responded to any paperwork from the court. He has been 'phoning me, however, and is threatening to take all of my money, he must mean the part of my overdraft that he didn't manage to spend when we were together.
He is in the armed forces and we were living in MoD accommodation. As he was the rent payer (£150) a month, and it was his name the property was in, the Dhe refused to let me change the locks when it became apparent I was no longer safe in the house. As this was the case, I moved out of the house last August (2001). He took the TV that I hadn't finished paying for, the sofa, the new fridge and washing machine, chest freezer given us by his parents and old tumble dryer. I walked out of the house with one bag of clothes. I also pay pet insurance for the dog we bought whilst together that his parents now look after. He is now asking that I help pay to restore the quarter to 'March Out' standard, ie as new quality. I have told him to sell the items that were left in the house. We were both earning the same amount of money when we were together, but he would always have spent his wages within 5 days, so we would live off mine. He is now saying he is going to get a solicitor to make sure that he gets my money so that he 'can be kept in the style he is accustomed to'. Please can someone advise me where to turn, what to do next?
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| A. |
He has little or no chance in succeeding in his application as there are no assets to deal with.
The court would not in my view make you pay for things you have no further interest in and would no doubt make him pay for the items he is using. If he cannot afford to keep them then he will have to sell.
My advice would be to make an offer of a clean break that simply says neither party shall have any claim on the other for the future and leave it as that. This would give you a court order that would ensure no further claims can be made by either side. |
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Date: 10 Jun 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband & I have been married for 4 yrs and we are experiencing problems which will probably end in divorce. The worry I have is that i have another property which I rent out worth £30000. This is in my name only, but my husband lived there for 2 yrs b4 we married. Would he be entitled to anything from this property? The mortgage was only £55 per month, so he paid in about £700. I also own timeshare apartments which I bought b4 I met him, would he be entitled to any of these?
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| A. |
The court will look at all the assets you have as a married couple including those bought before the marriage. They will take into account the contributions made to the assets as well as your current needs for income and capital and housing needs. There is no such thing as a 50/50 settlement unless that is what you both agree.
I suggest you contact a Solicitor asap. |
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Date: 10 Jun 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hi
Can you please tell me the length of time I have before I can no longer apply for my divorce settlement after my decree nisi and my decree absolute
Thank you in advance
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| A. |
If no order has been made then you can apply for the court to consider your financial position at any time after the Decree Nisi and after the Decree Absolute. |
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Date: 6 Jun 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been separated from my husband now for almost two years, and wish to start divorce proceedings. He has said that he is happy to do this. We were married in August 1996, after a whirlwind romance, but unfortunately separated in October 2000. He is Algerian but is now also a British Citizen.
Only thing is I am not sure what would be deemed a "fair" settlement.
I went to see a solicitor (free legal advice) who informed me that as our marriage was relatively short (5 years) matters would be simple.
I owned my house prior to my marriage (it was bought in 1990 for £43,000 with a previous partner, and when we split up I agreed to take over the mortgage - as it was worth £10,000 less than we had paid for it, so we couldn't afford to sell it and pay off the mortgage - he had our Endowment Policy in settlement). It is now worth a lot more than I paid for it, approximately £75,000....
So on entering my marriage, I solely owned the property, and still do.
My solicitor has told me that my husband is not entitled to take the house into the equation - but apparently he has been told differently.
I also received £16,000 redundancy payment during our marriage, and took out an ISA with £5000 of this, (the other £11000 got spent - ie paying off car loan, and mortgage and bills for the six months it took me to find another full-time job). I have continued to save money into my ISA (which is share related) - and have been told that he is not entitled to take the original £5000 invested into the equation. (Things are a bit complicated by the fact that the current face value is now LESS than when I took it out ie. last statement value £4,600).
Basically, I have been adviced to take all joint savings - and split things 50/50.... he will not agree to this - and basically it would leave him owing me money.
(I had £2000 cash and eventually gave him £1000 at the time we split up (verbally agreed to be taken into account, of any future settlement). At the time he was demanding £5000 - but agreed to the £1000. He then went on to agree to a final settlement of £3,000 - but now wants to get advice, and possibly ask for more.
He had an ISA which was worth £2,500 (I put in the first £1000 for him from my redundancy money) - am not sure whether he still has this - and if he does how much it is currently worth. He also had £1000 in savings - but I believe he spent this. I have no indication of his current financial status.
Any help please.
What is taken into account, and what isn't. And what is fair settlement.
I work in a junior management position, earning a little over £20K a year - he was working for the Post Office, but gave it up to go home to Algeria, and as far as I can make out, is now working part-time. He lived rough for the first few months of us separating, (basically round friends and in his car??? - but now has a council flat).
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| A. |
My view is that what you did in 2000 is what will stick today and there should be no further monies exchanging hands between you. he has made no contribution to the assets you have accrued and visa versa. You both work, there are no children, so thats what I would be arguing for. |
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Date: 19 May 2002
Answered by: David Leadercramer, Solicitor
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| Q. |
I have been seperated 4 years, my husband sees my son every night and every other weekend. My son also sleeps over night every Friday and twice a month on Tuesdays. Despite me trying to remain 'civilised'for the sake of our son i cant help but feel agreived. My Husband refuses to pay any of the costs for my son's upbringing - his arguement is that he wouldnt be able to afford to take our Son abroad twice a year!! or go on any of the trips they go off on and also that as my mother in law still takes my son to school each morning and picks him up at 3.30 every day for me he has to pay his mother to do this! I have even proposed that we just set an account for my son where we both place a certain amount each month and this can pay for all costs but again he refuses. Meanwhile whilst i bring up our son alone i am getting further into debt and cannot afford the luxuries my husband bestows on him. I sold the marital home for a few thousand more than we paid for it and gave my husband 65% of the profit, i also let him have our car worth £3000 and i started to use public transport!, i also settled all our credit debts etc and took care of all the bills such as mortage etc for the two years i was left in the house. I also let him have the £5000 surrender value on one of the endowments - i took the other. I did all this to basically cut the ties we had but it hasnt worked, if anything im still being walked all over. I have previously purchased your online divorce papers pack and told him i intended to file for divorce however he got extremley upset and i therefor didnt go ahead - this was 9 months ago. my queries are as follows -
1.can i still submit the pack you sent me to the court - we hadnt signed or dated it.
2. at what stage do i then apply for the financial maintainance i need for my son? Do you have a pack i can purchase? or would i be better seeing a solicitor for this.
3.My salary is £27000 and i work full time, i dont have any other income and i am £28000 in debt plus my mortgage - would i have to declare this if i applied for financial help from my husband.
I do hope you can help
Regards
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| A. |
1. I am not sure whether the divorce papers you received are now current. There were some changes relating to jurisdiction which altered the forms last year. The court will normally assist you on that as to whether they are current or not
2. I am unimpressed by your husbands arguments concerning child maintenance. He has to pay regular maintenance and I suspect that his payment to his mother is nothing more than a device to avoid paying you which most courts would see through. It is unusual for a grandparent to expect to be paid to pick up a grandchild!! You need to go through the CSA if he continues to be difficult regarding payment of child maintenance. Under new rules ( which hopefully will be in in the not too distant future) your own income is irrelevant in calculating your husbands obligation to pay maintenance. I suggest that you contact the CSA as quickly as possible |
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Date: 12 May 2002
Answered by: David Leadercramer, Solicitor
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| Q. |
I have been seperated now for 7 years. My husband left me with unpaid mortgage and a lot of debt. Un be known to me, he was not being faithful. I have never divorced because of two reasons, 1) The split was not of my doing, he now lives elsewhere with another child (I had one child to him). I am still responsible for paying for a divorce, he mentions that he wants one himself, but I have looked at the had the papers and read them for myself to file for divorce several times, but it all comes down to money, I can not afford the charge.
2) I was willing to have a divorce, but I am the main guardian of our child, I was left with her when she was six weeks old, I have taken care of her since, If I get a divorce I would like to return to my maiden name, but I dont see, when it is myself doing all the education and care, that we should have seperate names. I have asked my husband in the past if I can change my childs name, but he has always said no. Is there any legal rights on my behalf, if not to change her name, to double barrel it, so that she has my maiden name and his surname. I was not aware at the time that my husband had registered the birth, i.e. names etc. Hope you can help on both issues. I do receive money for my child via the CSA but not to the amount that they worked out, can I get the full amount that they have calculated.
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| A. |
You can file your own divorce papers and its not too difficult a procedure if your husband is agreeable. The cost of the fees is not that huge. You do not in fact require your husbands consent to divorce because you have been separated for more than five years.
You can use any name you like for yourself. However your childs name cannot be changed without the consent of your husband or a court order. As for the CSA payments you need to contact the CSA to ensure that they collect what you are entitled to receive |
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Date: 10 May 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I left my husband in September after 12 years of marriage and moved in with my partner.I have 3 children aged 19,15 and 11.They live with their father in the matrimonial home so that they kept some stability (friends,schooling etc)The house remains in joint names and I pay maintenance of £180 per month.I agreed to let my husband keep everything in the house,I only took one chest of drawers and some small kitchen cooking items with me.I want him to buy me out of the house.It is worth approx.£70,000 with only £36,000 mortgage owing.
I have now received a divorce petition and he is asking for ancillary relief as follows:
1) an order for maintenance pending suit
2) an order for periodical payments & secured provision for himself & said child
3)an order for a lump sum or lump sums for himself and said child
4)that such transfer of property order and/or property adjustment order be made
5)a pension sharing attachment order
My husband and I both earn similar salaries and have the same pension scheme (non contributory)
I am now living in a rented flat,I have no assets,and the only money I have is tied up in the jointly owned house.
Can my husband claim part of my pension,even though he has the same?
What does periodical payments and secured provision for him mean?
What does the order for lump sum payments mean?
I have no money left out of my wages each month and I still pay a home improvement loan for the kitchen in the house.He eventually agreed to pay 1/2 the loan which I deduct from his maintenance,yet on the official forms I have received regarding the children,he has stated the amount of maintenance paid as £110 which is incorrect.He has also stated that the children don't see me or stay with me,which is also incorrect as I visit them every weekend and have had the youngest stay with me.I am not sure what he is trying to do to me.
Can you please help?
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| A. |
The claims for ancillary relief that you have listed are standard claims and does not mean he is actually claiming them for you.
It allows the court to deal with all the potential claims by making an order in respect of a claim or dismissing a particular claim, as you cannot dismiss a claim without one having been made.
it is a bit of a chicken and egg situation.
What normally happens is that were parties have agreed their finances, the petitioner makes all the claims in the petition and when Decree Nisi has been pronounced, a consent order is filed that sets out what the parties have agreed and then goes on to dismiss all the claims either party can make in divorce for the future. |
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Date: 7 May 2002
Answered by: David Leadercramer, Solicitor
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| Q. |
We are about to get our decree Nisi and need to start talking finances. I would like to stay in the house if at all possible, as we have a young son aged nearly 5. I want to try to talk to my x2b rather than involving solicitors and the courts, but am finding it increasingly difficult to talk, and in particular raise such a delicate subject.
Our total assets are £272K. His personal? are £93, mine are £90, approx £90 equity in the house.
If the court decided 60:40 (how likely is this?), I would need to pay him £16K. I am more than willing to pay him £20K which was the difference between his and my investment in the house.
Questions :-
1) Is this reasonable?, if not what would be a reasonable offer, for a clean break?
2) Where do I start?
Thanks for any advice you can give
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| A. |
I am afraid that you do not say how old you are or how long you have been married. Both are important factors. The need to adequately rehouse your young son will be a paramount consideration for a court and will probably dictate how the money is split. You need to start by considering the cost of adequate housing for yourself and your son and working from there. How much will it cost to rehouse? What is your earning capacity if anything? Can your ex 2b afford to give you maintenance if you cant support yourself? Where does he want to live and will be there be sufficient for him to be rehoused after your needs and those of your son are dealt with. If it possible then your ex 2 b will be given some capital from your joint assets to put down as a deposit on his own place but there are too many unknown factors for me to give definitive advice |
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Date: 3 May 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My former husband is a certified accountant. He told me to sign a blank mortgage application form for our marital home. Upon compelling C&G under section 7 of the Data Protection Act to release a copy to me, I was concerned to discover that the only correct items on this form were our joint names and dates of birth. He even put down that we were living at an address that neither of us had ever lived at. I am therefore a party to this fraud. What can I do to protect myself?
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| A. |
You must seek legal advice as soon as possible! There have been many cases like this in recent years that have dealt with misrepresentation to spouses over mortgage deeds and depending on your individual case you may be able to get the deed overturned. |
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Date: 1 May 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband and I have been seperated for 6 months after 15 years of marriage. We have 2 children, 10 and 12 who he sees twice a week. He is paying no maintainance in return for currently claiming no equity from the house - currently approx £70,000. I have worked 0.8 WTE but have chronic health problems and am now having to consider early retirement on health grounds. This would give me a small pension and a lump sum of £30,000 which I would use to reduce the mortgage on the house. If he changes his mind, could he claim any of the £30,000 or gain extra from the equity?
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| A. |
The only way to ensure that you can protect the equity is to obtain a consent order within the divorce proceedings. Once this order is made there can be no further claims by either party against each other for maintenance, capital, pensions and inheritance. the only problem you will have is excluding the jurisdiction of the CSA which you cannot do. If you were to go onto any benefits the CSA can make a compulsory assessment although they will take the fact that that there has been an equity swap.
However if he is an agreement with the consent order there would be very little he could do if the CSA were to make an assessment.
What normally happens is there is a chargeback clause in the order that says the receiving party (you) will pay back to the paying party any monies deducted, although whether this is enforceable is doubtful in my view. |
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Date: 25 Apr 2002
Answered by: David Leadercramer, Solicitor
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| Q. |
My wife and I married two years ago in Ecuador, her home country, and have since worked in the Middle East. There are no children. We have agreed on a divorce, to be processed in the UK, and have mostly sorted the financial arrangements, however there are a couple of questions.
I have contributed to the upkeep of her family in Ecuador during the marriage, mainly because they lost the income from my wifes job. Should this be taken into account when working out who contributed what to the marriage?
Secondly, my soon-to-be ex-wife is concerned over what action she could take in the event of my defaulting on the periodical payments. It won't happen, but the possibilty worries her. What could she do in this event, bearing in mind that my work takes me to many different countries?
Thank you in advance.
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| A. |
You don't say whether one or either of you habitually reside her in the UK. Assuming that this is the case and the English court has jurisdiction then her lost income will not automatically be taken into account as your obligation to look after her family is purely voluntary on your part. Her position rather than theirs is what counts.
Your wife could seek secured periodical payments ie a fund or other property secured against the possibility of your default but this is relatively unusual and there are certain reciprocal enforcement treaties in place with man different parts of the world anyway |
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Date: 13 Apr 2002
Answered by: David Leadercramer, Solicitor
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| Q. |
My wife left the matrimonial home two years ago following extended treatment for alcoholism. We have been married for 17 years, three children 14, 10, and 8. She has secured rented accomodation paid for by DHSS and is on income support. The children stay with her most days but we are fairly amicable when it comes to the children staying with me at weekends, school holidays etc. The family home is worth 195,000 with a 50,000 mortgage and we have agreed on an approx 90k/50k division of equity and I am currently raising the money to pay her off the 90k. In return for this she has agreed to let me keep my company pension. I have been paying the mortgage solely, and giving her money for the children as required. I have the necessary papers ready to file for divorce without solicitor. I would like to know how I can keep this agreement legally binding and stop any further claim to assets.I am aware that this settlement is probably a lot fairer for me than what a court might decide and I would like to safeguard that.At what point do the financial matters have to be submitted to the court? Can I go ahead and submit the initial application?
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| A. |
In theory there is nothing to prevent you obtaining a divorce and leaving all matters open with regard to financial matters. You can then implement your agreement with your wife on an informal basis. However this is dangerous because the claims of your wife and yourself cannot be excluded until the court has disposed of them. This means that any informal agreement(even if in writing) will not necessarily be enforced. The only way you can therefore prevent any claim on further assets or income is to obtain a court order.
One other issue - will not the receipt of the sum of £50,000 affect the Income Support issue and I am a little surprised that the DSS are paying her rent in these circumstances |
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Date: 4 Apr 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner received his decree nisi over 8 weeks ago. He was the respondent in the case and has been advised that it's unlikely his wife will apply for an absolute until there is a financial settlement. Holding up this settlement is her application for public funding which has taken ages. The first application 'ran out' we are told and so had to be reapplied for. This was december 2001...so far nothing. My question is can my partner apply for the absolute despite there being no agreement of finances yet (though he has put forward a good package 18 months ago!) and how long does public funding take ...why did the application runout? Thanks.
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| A. |
I very much doubt that a court will allow the Decree Absolute if the finances have not been agreed and made into an order.
The question I have is why does his wife need to get more public funding if the only matter outstanding is the drafting of an agreed order? They can apply for an extension of her legal help Certificate to draft the order and deal with any correspondance. In most cases they can deal with this themselves without having to get CLS approval first under delegated powers.
If you believe that the finances are agreed you can present her with a consent order. She can then ask her Solicitor to look over it. If he approves the order, you can then file it and at the same time apply for the Decree Absolute if she still will not.
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Date: 29 Mar 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife left the matrimonial home last May and has paid nothing towards it or debts accrued during our 10 years of marriage. Most of these debts are in my name. The mortguage,Council tax and hp. I have paid a great proportion of these debts since our seperation. Can i still offset them against the value of the home? Will the court consider the current value or the value when she left.
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| A. |
The court will consider many things before making an order including the relative contributions to the assets by the parties, any debts they have, their respective needs for income and capital, and the needs of any child. You can argue that if your wife has a similar income that the costs of the debts should be refunded to you before the equity is divided. I would put it to her before you instruct any Solicitors to start negotiations, as if you can reach agreement early, this will save a huge amount of costs. You can then have a consent order drawn up reflecting the agreement and making a binding order. |
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Date: 25 Mar 2002
Answered by: David Leadercramer, Solicitor
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| Q. |
Following a divorce is there any legal compulsion that can be applied to my ex-wife to be to force her to generate some income of her own. Background 3 young children at full time school. She did work prior to the marriage and has some good skills (e.g. Art degree, good computer literacy, teaching English as a forign language, foundation course in psychology)
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| A. |
Ex wives are expected to maintain themselves if they can an subject to child care needs but child care costs can be prohibitive and you would need to show in real terms what she could earn and make out a case that she could continue to look after the children (with help) and still contribute to her own maintenance. If the children are at full time school she may well have some ability to get a job but what about school holidays and so on? If you think that this is a possibility then you can apply to vary any award of spousal maintenance downwards if she refuses to get a job in unreasonable circumstances. |
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Date: 13 Mar 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner has been living with me for the past year. I own the property and pay all mortgage realted and domestic bills. I do not charge my partner rent and she does not contribute to the mortgage, she does however contribute to domestic bills. If we were to split up in the future would my partner be entitled to any part of my property even though she hasn't contributed to it?
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| A. |
Probably not as is you are the only one contributing to the equity by paying for the mortgage and upkeep and repair of the property. |
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Date: 10 Mar 2002
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Hi, just a couple of quick questions.. I hope. My wife moved out last year in Feb to live with another man taking our three children with her. She now lives 200 miles away. I carried on living in the marital home and have the children to stay each school holiday and every third weekend.(14 weeks per year) I pay her 25% of my take home pay for the children minus one seventh for the holidays and weekends. Her boyfriend has now moved out but they are still together and spend nights at each others houses.
I am aiming to start proceedings asap and am waiting to look at finances. She is working and receiving supplimentary income, I receive a salary but am paying all the bills on this home.
My question is;
Now she is no longer cohabiting, though she has a boyfriend who stays with her at times, am I expected to pay maintence for her as well as the children?
Can a court force me to sell this home, I have to have at least a two bedroom as my childrn are with me for so long each holiday?
If I take in a lodger to help with money etc.. will I have to pay her more as I am receiving more 'income'? I will have to remortgage and the new CSA rules are now heavily against me as they do not take this into account.
Hope you can help.
Dave
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| A. |
Maintenance for her is a difficult area as you may not earn enough to put her in a better position than she is now on benefits.
The Court may not force you to sell your home but if there is equity your wife is more than likely entitled to some of it, and if you can’t raise it a sale may be inevitable. However the finances would need to be looked at as a whole. That is, all the assets valued including pension provision. Without knowing all the information it would be wrong to advise.
Collate all your financial information and get some initial advice from a solicitor.
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Date: 10 Mar 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
The home in which I still live with my 2 children is under financial discussion after separation. My ex maintains that as the home is still in joint names that he has every right to enter the property at any time with or without invitation. Does he have this right and how would I prevent him letting himself in the house and "snooping"? Also.. he is putting in a claim for 60% of marital equity/assets. I am in fulltime employment and for the past 15 months since he left I pay the mortgage and endowment in full and all other regualr household bills. He doesn't contribute any maintenance to the children (17 & 18 and both in fulltime education) and now lives with his new partner in their home and he works fulltime. Is this % not a bit on the excessive side?? And can I ask for his partners income to be assessed with his at mediation?
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| A. |
On the face of it you would be looking at a 50% split of all the assets including pension assets if they are avaliable so yes 60% does look like he is being greedy but without all the facts I cannot really say.
Have you considered pension assets? Even if you do not want a pension sharing order it may be that if you add the value of his fund and your fund and divide that you could argue for more capital for yourself to offset his pension fund to avoid a sharing order.
However that said you should get some legal advice before making any decisions.
As far as the entry to the house is concerned he is allowed access but on reasonable notice to you and by appointment to protect your right to privacy. If he refuses you can get an occupation order which would regulate when and how he can enter the house. |
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Date: 5 Mar 2002
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My wife and I have decided to divorce after 18 years of marriage. We have two children, 16 and 15 who will remain in full time education for the time being.
My wife has a part time job earning about £5k per year but she also gets paid part of my salary as I part own my own company.
I currently pay all the bills and her £5k salary is very much for her to spend as she wishes.
It would be best for the children to remain with their mother in the family home but I'd like to know if I have to pay all the mortgage and endowments in addition to paying maintenance?
The house is valued at around £190,000 with £105,000 outstanding on the mortgage.
There is an outstanding credit card bill of about £5k which I also pay but which is in joint names and was partly run up by my wife but only ever for things for the family or home. Am I exclusively liable for this debt too?
I want to make sure the children are looked after but obviously there has to be a limit so that I can have a life of my own too.
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| A. |
The maintenance side of the finances cannot be looked at in isolation. One of the Courts priority when considering the finances is where are the children to live. If the house is sold there may not be enough equity for them to be re-housed with your wife particularly as her borrowing capacity is limited.
The Court will need information about all the assets, including pensions and any value your Company may have. In addition debts will be taken into account if they relate to the marriage, ie, you have both had the benefit of them.
I would advise you to collate all this information and then to visit a solicitor who can give you initial advice on the likely orders to be made and the options available. Clearly however you have a maintenance obligation but the level of that depends on your earnings.
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Date: 12 Feb 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I bought my property three years before meeting and marrying my husband. It is in my name only and he has never contributed towards any maintenance, mortgage or bills. We lived abroad as an unmarried couple for one year before returning to the UK to be married (just over 2 years ago) and immediately returned to Spain where I had a job and also supported him as he had no personal money. At the end of my contract, we both came back to the UK in July 2000 with the intention of settling.However, in August 2000 he returned alone to Spain where he has since worked and supported himself independently of me. He has no property or savings and I have frequently bailed him out. He "owes" me approx. £12,000 although I would rather cut my losses and not regard it as a debt still owed. I have recently found out that he has been carrying on whilst abroad and although I do not wish to have an acrimonious separation by having to prove adultry/desertion etc., I do wish to separate officially with a view to divorce in 2 years. I would like to know whether he has any claim on a property which was bought before me met, is in my sole name, has had all mortgage repayments made by me and to which he has never contributed. He has never actually lived in my flat apart from visits for a few days every two months or so. Apart from these visits, I have lived alone and continued to support myself in the UK and pay my mortgage, bills etc. Please advise what, if anything, he could claim. We are currently amicable towards each other and hopefully the situation won't change. Many thanks.
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| A. |
The answer is he probably has no claim as he has made no contribution to the property and has never lived in it.
However there are no hard and fast rules so legal advice may be appropriate if you cannot agree.
If you do agree the court will not intervene.
You can get a Consent Order drawn up to make sure this is the case which he would have to agree to. this is filed after Decree Nisi has been made by the court and is binding on both parties and ensures no future claims can be made.
As for the divorce, my advice would be to proceed on his unreasonable behaviour now as to wait two years without the divorce or the protection of a court order for the finances could leave you exposed to a claim.
You do not need to go into huge details about his behaviour, what you have said already would probably suffice for a court. |
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Date: 12 Feb 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I hope you can help, im thinking of divorcing my husband as its just not working out (his unreasonable behaviour) I have 2 children (ages 1 and 3) and we own our house outright, but im worried that I will be left homeless as its hard to work with small children and my parents live in spain, I just wondered what if any my rights were, please help if you can,tanya
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| A. |
The divorce is the easy bit, the finances are not always so straightforward.
The court will look at your needs for housing, income and pensions and other capital.
You should be looking to get most of the equity in the house to be able to afford a house with little or no mortgage.
If you have no mortgage then there should be sufficient equity to be able to do this, even if it means having to move to a smaller less expensive property. Also if your husband has a pension, you could offset what you could get from that fund against the equity in the house.
I suggest you get some legal advice asap. |
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Date: 7 Feb 2002
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I am divorcing my wife on unreasonable behaviour.
She now will not look after the boys/schooling/food/clothes, etc.
She is claiming family allowance and spending it on a loan she has.
I pay all the bills/mortgage.
I have now discovered that she has been having an affair - she now openly flaunts this and tuants me.
She has asked the boys (13and 8)who they want to go with and they have both told her they wish to remain with me.
I have offered to buy her out of the house 50/50 of the equity despite the fact that I put £30,000 of my own money as a downpayment on the house before we were married.
My solicitor has asked her to leave the house as of 08.02.02 due to her desruptive influence on the children.
She has refused - we were going to raise an occupation order against her via legal aid but I am now told that I do not qualify for legal aid and I can not afford to fund the cost as all of my savings were in my wifes name.
What can I do - are they any other organisations taht can help me or fund the case.
We are desperate.
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| A. |
Have you considered undertaking the procedure for an occupation order yourself? The actual procedure is not as complicated as you might think, only the advocacy at court is likely to be where you will need someone there to represent you, unless you are a confident speaker. In any event the Judge has a duty to assist you as a litigant in person. You can get the required forms from the court, although you will have to draft a statement setting out the reasons for the occupation order. The court must make an occupation order if it is likely you or the children will suffer significant harm. |
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Date: 28 Jan 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife and I have recently divorced after a two year separation. We have no children and the separation was amicable. When we separated our possesions were divided and as we were living in a house provided by my employer there was no division of our home to be considered. I own a house which was bought before we were married and has been let over the past four to five years. At the time the house was purchased she signed an agreement with the mortgage provider stating that she would not be liable for the mortgage and presumably not be liable if I defaulted on the loan. Obviously the house is in my sole name and I have paid all the mortgage and running costs since the purchase.
The absolute was granted on 7th Jan, but I have now received a letter from my ex's solicitor asking for financial settlement with regard to the house. My question is a) does she have any entitlement to my property and b) if so can this be redressed after the absolute has been granted?
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| A. |
Yes she is able to ask for the court to consider her financial position with regard to all of the assets even if Decree Absolute has been granted. Whether she would receive anything is another matter as the court will need to look at her contribution, together with her need for income and capital.
I suggest you get some legal advice on your individual position as soon as possible. |
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Date: 21 Jan 2002
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My spouse is uncooperative and although we exchanged Form E's his was incomplete and no supporting paperwork such as valuations were sent. Ours is a short marriage of 8 yrs - very troubled and 3 attempts at divorce. We each have our own assets and a good income. We have one joint asset the matrimonial home worth about £400k. I need my share in order to re-start my life and need to know the best way to force him to negotiate with me. I know I can apply for ancillary relief but this can be very slow. I have put in a divorce petititon but he is defending it although he does want a divorce. I am wondering what my best way forward is please? Do not print my name at the bottom please?
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| A. |
Apply for ancillary relief. The new procedure is not as slow as the non-co-operation of your Husband. If you had filed two months ago you would be attending Court for a directions appointment now and the Court would be advising your Husband of the implications of non compliance.
Sometimes negotiations do not work and Court applications are the only option.
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Date: 17 Jan 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Please could you let me have the name,address and phone number of an organisation that can help me gain compensation from my solicitors. I started divorce proccedings in 1996 and it is still painfully going on.This is my 3 rd solicitor as the others were so slow,unprofessional,unhelpful,and gave little or poor advice.
please do not include the office for the supervision of solicitors as they seem to have very little ability to help.
thank you
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| A. |
Apart from the OSS the Legal Ombudsman is avaliable to help in cases where the OSS cannot help or you do not feel they are helping you.
Their details are:
Office of the Legal Services Ombudsman
3rd Floor
Sunlight House
Quay Street
Manchester M3 3JZ
Lo Call No: 0845 601 0794
(Charged at local rates - available nationally)
Tel: 0161 839 7262
Fax: 0161 832 5446
The website is at http://www.olso.org |
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Date: 16 Jan 2002
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My divorce is nearing completion after 15 months, there were no children involved. I have been very unhappy with the service received from my solicitor due to lots of errors on his part and a reluctance to do anything unless asked at least twice.
My main problem is that now it has reached the point where i need to pay the settlement to my ex-wife I sent the cheque to my solicitor but he has replied requesting his fee as well before he completes matters. Is this normal ? I have a lot of queries and complaints I want to be answered by him before I consider his bill. Thanks for your attention.
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| A. |
I believe that your solicitor is under a duty to pay over the monies due under the settlement, particularly as there appear to be time limits involved and you could be penalised for not doing so. I am not aware of the basis of your solicitors retainer and therefore cannot comment on what he states, ie, pay up everything.
I would write to the partner in charge of litigation, or the person you have been advised to write to in the Client Care letter if you are unhappy with the service. If they refuse to pay over the monies then you may need to contact the other side to advise of the dispute.
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Date: 16 Jan 2002
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Hi, my new partner has lived with his ex partner for some time. They have one son and have recently attended court for residence. A joint residency order wa issued and alternate weekendsand three nights contact per week granted to Dad. They now have the financial hearing in a fewweeks. The mother is applying for a transfer of property or a sum of 200K. Their propery is worth about 300K with a mortgage of 140K. Since the breakdown of their relationship almost two years ago it has come to light that Mum was in receipt of income support as a lone parent although of course they did live together. She has been in receipt of this benefit for some four years. When it comes to division of property, as they have never married how will this be dealt with. At present my partner lives in the family home and maintains the family bills, mortgage, food shopping, utilities etc for the whole family. He has not shirked his responsibility in anway. He has not however, received any contribution from his ex partner for any of this although the income support is intended to suport her and their child. The CSA hve not yet been involved. Can the court grant a transfere of the property? Mum has said she intends seeking employment once all ancillary matters have been dealt with. She has not worked for some eighteen months now. And once she has securd employment she hopes to obtain a mortgage in the region of 60k which, alon with the 200k he could then house herself and her son in the style to which hey have become accostomed. However if the property is sold, there is not enuh equity to grant her 200k. Where does this shortfall come from? My parter has offered that the property be valued as approx the separation of eighteen months ago, that the equity at that time be split 50 - 50 and that he obtan a mortgage to buy her share outright. He has also stated that until such time as she secures a job with a salary to obtain a mortgage that they continue to live in the property so that their sons life is not disrupted any more than is necessary. Of course should she wish to use the capital to rent a suitable accomodation then it is her choosing. As they have a joint residency order can it not be that their on continue to live with his Dad until such time as Mum finds what she deems is suitable property. She is not prepared to move to a smaller property but wished to maintain they style to which she has become accustomed. The property was purchased nieyears go with my partner paying the deposit of 25k.
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| A. |
If your partner has not already got a solicitor I would advise him to do so. It is not clear from the information you give under what legislation his ex is applying to the Court.
If it is an application under the Children Act it could be a lump sum for the Children. If the property is in joint names then all sorts of legal principles apply, and different things are taken into account for the applications.
I am sorry to be vague but it would be wrong to give advice when the situation is not clear.
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Date: 15 Jan 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My divorce has been going through for 12 months now mainly because we cannot come to any agreement concerning the financial side of things. It is therfore going before the court. I would like to know if the real reasons why I am getting divorced will have to be disclosed. If the truth came out my husband would instantly loose his job. He is a policeman.
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| A. |
No the court are not interested in the reasons for the breakdown of the marriage, just what is equitable as far as the financial side of the divorce is concerned. |
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Date: 10 Jan 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hello and thank you for your time
This is just a general Question
I would like to know what is the law on savings? If I am getting a divorce and if you have a joint account or if an account is in you name only what are the rules on splitting?
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| A. |
Generally all assets accrued during the marriage are treated as assets that are capable of being divided in the event of a dispute. You really should be able to reach some agreement about these assets to avoid having to pay a lot of costs for what can sometimes be a small amount of money. If you cannot agree I suggest you either try mediation or get yourself a Solicitor. |
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Date: 9 Jan 2002
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I have Decree nisi. My husband appealed. Don't know the outcome. we don't communicate properly. He refuses any understanding or solution to our problems. He was ordered to pay my legal costs, but doesn't. How do I get him to pay them? I took a £10,000 loan, paid my lawyers and now I am without any legal advice.I applied myself for ancilliarry relief and I need help with the following issues:
1) I fill form E and attach all documents (apart from house valuation, which I don't have - house on husband's name and he says I have no right to evaluate it or to ask him such a think. Is it possible for me to do it whilst he is not home?)
Do I need anything else with this Form E? What happens if he would not give me his own Form E? (I intend to lodge mine in court and inform the court)
2) I have to submit a statement after the Form E. What should that be about? Just list financial matters? Do I need a SUMMARY for it and a STATEMENT OF THE ISSUES like I see in the bundle prepared by my lawyers for the divorce? What exactly do I need to follow to keep it short, clear and enough to prove the situation? (he inssisted in having complete separate accounts, I knew nothing about his, he continuously sent money out of the country, hid the rest and even claims has very large debts. I was looking after all my expenses, the children's (he would buy them occasional presents mainly at Xmas and their birthdays)the family's feeding, things in the house and half of utility bills.
3) I also have to submit a chronology. What is that exactly? Is it listing all the court contacts? Do I start from where the lawyers left or do I start from the date I applied for ancillary relief?
4) In my statement do I / can I refer to points in my Petition and his replies?
5) What happens in court at the first hearing? Do I read the statement? Do I get the chance to quetion him? Can I bring in instantly notes and letters to prove he lies when he will?
6) we still live together in the matrimonial house which is in his name, in locked bedrooms, no communication apart from occassional outbursts. There are 2 children in the middle of all this. How can I speed up things so that we get a solution from court sooner. It's been now 3 years since I started this divorce. He will not agree to anything, because he doesn't want to share anything and wants to make it as long as possible, revenge on me but also hoping he can keep it on a few more years until the boys leave home. They are 14 and almost 18. By the way, do I still need to apply for the residence or maybe by sorting the finances, the children are also "sorted"?
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| A. |
Answer
1. You have a right to a valuation of your Husband’s property even though it is in his sole name. At the first directions appointment the Court can/will make an order that a valuation be obtained if you do not agree his.
2. The statement of issues is a document which assists the Court in determining what is in dispute. Sometimes it is the case that the parties agree on some issues, such as lump sums and not others, such as maintenance. If you are not aware of your Husband’s assets then that could be an issue, ie, his non- co-operation.
3. The chronology is for important dates, ie, dates of birth of you both so the Court knows how old you are; date of marriage, dates of birth of children, date of separation, date of any applications made, including divorce.
4. The statement of issues only relates to the finances, only in rare circumstances can conduct play a part in the financial side of the divorce. The matter in relation to the Decree Nisi is separate, bear in mind that the Court cannot make an order in respect of finances until DN has been pronounced.
5. At the first directions appointment the Court will make orders as to how the case is to progress. Such as ordering you both to respond to any questionnaires which have been written, etc, a joint valuation. You can advise the Judge of any disputes or problems you have in relation to your Husband’s disclosure.
6. If residence of the children is not in dispute then you do not need to get the Court involved. Now that you have an application before the Court the finances will have a timetable imposed upon it.
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Date: 5 Jan 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner and his wife have divorced after 27 years of marriage but as yet the financial affairs have not been sorted out. My partner runs his own small removal business (income approx £10,000 pa), the only asset of this business is one fairly elderly removal lorry. There is a property in joint names which my partner has paid the mortgage on since the house was purchased approx 20 years ago until 12 months ago when he left. We now live together in my house, his ex wife lives in their matrimonial home along with the 4 children aged 14,16,18 and 22. The youngest 3 are still in full time educations. My partner pays £80.00 weekly maintainence, this is a private agreement between him and his ex-wife. His ex-wife has part time employment and also claims some benefits. Can you advise what he is legally entitled to as far as the property in concerned. His ex-wife seems to think that he should have the business (which is basically worthless) and that she should have the house and contents, whilst he his happy for her to have the contents of the home he does not agree that she should also have all of the property, which is now worth about £60K with a £25K mortgage, although he is happy and would prefer to leave any financial gain until after the 3 youngest children have completed full time education.
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| A. |
The court would look into all the circumstances of the parties, including capital, income and pensions, housing needs and needs of any children. The court would wish to ensure that both parties and the children can be adequetly housed. It may be that the court would defer sale of the property until after the children had left education but may give the wife more capital to compensate her for a lack of income capacity.
There are no black and white answers I am afraid and he should really get legal advice as soon as possible. |
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Date: 4 Jan 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
After 10 years of marriage the last 3 became completley unbearable living with a gambler and a drinker over the past 3 years I asked him to leave the matrimonial home on several occasions (I have 2 children aged 8 and 3)as my children were so young I could not go back to full time employment. He said that he wanted the house sold if he was leaving and refused to pay the mortgage, when he finally left he stopped paying and we went into 4 months arrears. I consulted a solicitor who advised me it would have to go to court which could take up to a year by which time I would have likely to have had the house repossessed. As i had suffered with so much mental and in the end physical abuse I reluctantly agreed to sell the house (we had £30,000 debt to repay - mainly due to his gambling habits) this left £17,000 he agreed for me to have £14,000 and he took the car (worth £5,000) and £3000 cash (we did not use a solicitor but decided on this between us) I then needed to buy a car and am in a privately rented house as there was no way on my part time salary I could get a mortgage. Since then he has got himself a mortgage on a flat. I am on working family tax credit and he pays me £400 per month for the children. I have not started divorce proceedings yet but intend to shortly. I would like to know where I stand financially particularly with regards to the flat he has bought (as this was done whilst we are still married)also the sum of £400 was agreed between the 2 of us (which just about pays half my rent)Will I be entitled to any futher financial settlement through a divorce e.g maintenance for myself and should he be paying towards maintance and "keeping a roof over the heads" of his children? He earns in the region of £35k.
Thank you
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| A. |
Your financial circumastances at the time of the split are only one consideration. As there is no courrt order, every asset you both have is matrimonial property and can be taken into account, so the answer is you have valid claims for everything, property, lump sum, maintenance. |
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Date: 31 Dec 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Final hearing in 3 weeks. 2 children ages 6 and 7. Joint Assets valued at £300k. Have offered 60/40 Clean Break. W has requested 84/16 plus £5k spousal plus CSA.
Income was £70k pa and hers £5k.
She can claim WFTC and is deliberately restricting her part time earning capacity.
Heres the twist. I have just been advised that I am at risk of redundancy, with the termination date to occur 2 weeks after the court hearing. To all intents and purposes the job is gone and I am on Garden Leave.
My wife is sticking to her guns and claiming that the court will be even more sympathetic to her given my lack of employment. She feels they are likely to give her all the capital.
Employment prospects are good, but my income will fall to around £40k realistically.
I want to claim a drop in living standards for all and stick to 60/40 with no further offer. My mortgage capacity is severley restricted and therefore I have a capital requirement. She wants to claim to maintain hers and the childrens standard at the cost of mine dropping even further.
Please advise your opinion in this case.
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| A. |
Don’t know enough about the situation to advise you on what to offer or not. If you have a solicitor talk to them.
I would obtain written confirmation from your existing employers about your redundancy and also documentary evidence of your potential earning capacity for the Court to consider.
There is a risk the Court may give your Wife more capital if income is in issue but it may go either way.
Bear in mind the Court will be concerned about the children, where they are to live and how will they be supported.
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Date: 9 Dec 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband and i seperated in 1993 and left the marital home, \I stayed with the children and remorgaged the house in 1994 in my name and paid my husband £5000 for his share.
my husband suffered an injury at work whitch left him partialy disabled, so he moved back in with me and we continued trying to make the marrage work. It has now become imposible to coninue and i would like my husband to leave but he refuses to. he belives he is entitled to half of the house again and contents, i donot belive he is as he has never worked since his injury and has not contributed in any way to the home. I have been doing two jobs to keep the family financialy sound.
has he any claim to the property or contents, and can he claim in court that his illness requires him to stay in the family home , both children want to stay with me even if i move out they are 13 and 15, i dont want two leave as i cannot get another morgage becouse of this one and i cannot afford the morgage and to pay rent can i be forced two do so?
please heklp i2m at my wits end
yours r e taylor
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| A. |
You need to instruct a Solicitor for this as the court has to look at the relative needs of the parties as well as the contributions of the parties and it may be that your husband has greater needs than you for housing and capital. |
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Date: 4 Dec 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I was married in 1980 and have two children aged 13 and 18. My husband had a company transfer in 1994 to the USA where we lived for five years. My daughter returned to the UK to live with me when we separated in 1999 whilst my son remained in the US with his father. Since then my husband has supported our daughter every month by sending $1000 (approx £600) and paying her school fees. He would not sell our marital home and moved all our assets.
I put my career on hold to raise the children as his job took him away for long periods. I also have multiple sclerosis which means I can only work part time. My health has now deteriorated to such an extent my family have shamed my husband into agreeing to a settlement. He is now Vice President and Director of an American company earning a large salary however I have no way of checking the amount and have been told he has deferred his salary rise until after we have settled our divorce. No other parties are involved and we have been separated over two years.
My solicitor refuses to commence work without £1000 in advance which my husband refuses to pay and I do not have access to any capital. I do not qualify for legal aid as I earn £10,000 a year. My husband is visiting the UK to settle our financial affairs however he says I am not entitled to alimony and expects us to reach a private settlement. How can I find out what I am entitled to as I cannot afford legal advice and none of the usual agencies can help me. I find myself in a Catch 22 situation and do not know where to turn for advice. Thank you.
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| A. |
You really do need a good Solicitor who can help you.
You will be entitled to legal aid as it is based on disposable income not gross income and you should obtain an appointment with a Solicitor with a Family Law Legal Aid Franchise.
You will be entitled to spouse maintenance, pension sharing etc from the information given.
You will jot get legal Aid for the divorce itself but this is something you can do yourself in any event leaving the lawyer to deal with the financial negotiations.
We can assist you to achieve your divorce using our highly regarded LegalPac at £80.00
This service will provide you with all the required court documentation, completed for you, standard letters our step by step guide to procedure and more importantly free advice and assistance by telephone or e-mail until you are divorced. this also includes any amendments or additional documents needed for the divorce (special procedure).
In addition to our fee there are mandatory court fees which are
£150.00 when you issue the divorce
£30.00 when you apply for the Decree Absolute.
The whole procedure will take on average 3 months from start to finish.
To order goto: www.divorce-online.co.uk/redirect.asp?goto=services/legalcentre/index.asp |
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Date: 11 Nov 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am a british citizen and did my registry marriage 10 years ago in London, we have 3 kids aged 7, 5 and 3, we moved back to Nigeria three years ago as this is were my husband is from, he has been committing adultery and now i want a divoce,i will be moving back to London with my children in December to start the divorce procedings, he is a wealthy man with two properties in London, one of which he bought in my name and paid cash for, i dont want to be hurrible to him, i just want to do what is best for our kids and me as he does not seem to care about the deteriorating state of the family caused by his numerous affairs, please guide me on areas the law will favour me and my kids, thank you so much for taking time out to read and reply my mail.
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| A. |
The law says the court has to take into account a number of factors in deciding the settlement. Your respective needs for housing, income and capital, those of the children, and of course your standard of living prior to the divorce.
I would advise that you see a specialist divorce Solicitor as soon as possible. |
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Date: 29 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Would I still be entiled to a finacial settlement if I was found to be having an affair.
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| A. |
Yes of course. The facts of the divorce will have no bearing on the financial matters unless it relates to financial behaviour. |
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Date: 29 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband and I have been together for 9 years, married for 4 1/2. I have 2 children from a previous marriage but my husband pays for their private education and they don't see their real father. They are 12 and 13. We live in a house worth £450,000 (£200,000 mortgage) paid for by my husband. I am entirely financially dependent. If I was to move into rented accomodation how do I go about it? We have no joint finances so I can't lay my hands on any money to fund such accomodation. Will my husband still have to pay for the childrens' education if we divorce?
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| A. |
The law has to consider what the respective needs of the parties are for capital and income. Whether they can work, or have work prospects etc.
You will have a good claim for maintenance and this should be dealt with as soon as possible. Also if you do not work I would be looking to secure you housing that had no or very little mortgage. You should however see a Solicitor very soon to get the ball rolling. |
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Date: 28 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been married for 17 years. My wife put £18k down as the deposit for our mortgage and I have paid the mortgage payments to date. 4 years ago she inherited 45k and frittered it away without me been involved.
Now I am divorcing her for unreasonable behaviour.
do I have right for a share in the property which is valued £98k?
we have two teenage girls and I no longer live with my family.
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| A. |
The court has to look at the contributions the parties have made to the assets as well as to the needs of the parties and the children of the family.
You do have a claim to the assets, but this will depend very much as to what your need for capital and income is compared to your wife and children.
You need to obtain a Solicitor if you are unaable to agree what that share should be and when it will accrue. |
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Date: 22 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am separated since Dec 13 2000 and have decree nisi since Sept 01 but no absolute yet, pending financial settlement. I have been long term sick from full time employment since 5 Sept 00 and received no salary since Dec 31 2000. I am diagnosed with ME / Chronic fatigue and am disabled with this and am declared unfit for work by my employers. I remain 'employed' but with no pay or benefits. I now live off state benefits DLA, income support & incapacity. My solicitor tried for interim maintenance but did not succeed - no figures were ever agreed and I was advised to accept 'offer' of unreasonable behaviour grounds for divorce rather than my husband counter claiming my adultery, which is not admitted. Now,my medical condition is worse due to the financial strain and emotional stress - being locked out of my house etc. I bought a small house with the cash I got my husband to agree to release last December but needed a loan to top up the amount. Subsequently I've had to remortgage and have been living off my equity. I could not live independently due to worsening medical condition and have rented out my property on 6 month short term rental and now lodge with my friend/colleague/ unpaid carer with rent book etc. I have benfitted from legal aid. My husband is now calling my landlord's assetts into question even though we're financially unconnected and does not support me. Questions: 1. Can I go back over the claim for maintenance or account for it in my financial proposal ? 2. How can I ensure my landlord will not become involved ? 3. Is there any other option ? (I suspect my solicitor is out of her depth) - a look at the file by a barrister for a written brief has been suggested ?
4. Do valuations of shares & pension values have a cut off point esp with recent market changes ? 5. Are there rules as to number of valuations of properties - there are 2 houses to consider one in Spain and the marital home over here ?
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| A. |
Angela,
All the assets accrued during the marriage have to be taken into account and disclosed. The valuations have to be current and relevant at todays market, not yesterdays.
Your landlord may be wise to file an affidavit indicating the relationship is purely financial and that there is no cohabitation.
I would also advise that getting a barristers advice is sometimes a good idea as it gives an independent overview. |
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Date: 22 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Good afternoon,
My question is about the process for sorting out the division of property. The background is this:
I have petitioned for divorce from my husband on the grounds of unreasonable behaviour. He does not accept that our marriage has broken down and is defending my petition (but has not made a cross-petition). We have no children, but have a mortgage in joint names. Both the mortgage and the deeds of the property are in joint names. I left the marital home in December 2000 when things became untenable, and have not been back since. Most of my personal and jointly-owned belonging remain in the property and I have been unable to get them. Shortly after I left, my husband changed the locks on the property without my consent and has denied me access. I stopped contributing towards the mortgage shortly after I left the house on the grounds that I did not have access. He is continuing to meet the mortgage payments.
My first objective is to sort out the ownership of the property and regain my belongings. As we are unable to do this amicably, I understand that my options are to: a)continue with the divorce petition and get the court to make a settlement at the point the petition comes to hearing or b) to withdraw the divorce petition from the divorce courts and instead make an application to the civil court to sort out the ownership of the house.
My question is: how long approximately would it take for such a matter to be settled by a civil court? what are the likely costs involved? could my husband defend the case? what sort of matters would the civil court examine to determine who gets what?
Thanks in advance for any advice you can offer.
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| A. |
My advice would be to get an application for ancillary relief issued as soon as possible to avoid any further delay.
The court has wider powers to make orders in the matrimonial proceedings than it does in what you call civil proceedings.
Most cases are settled before they reach a final hearing, but thanks to a strict timetable, cases no longer take years but months to conclude.
I would also advise that you instruct a Solicitor for this who has to give you a realistic costs estimate at the start and throughout the proceedings. |
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Date: 22 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
This is a question for a friend of mine. He left his wife 8 months ago and is now living in rented property. His wife is now pursueing divorce on grounds of adultery, which he is not contesting. He is worried though as he is a very high earner ie 100,000+ and his wife is partially disabled and not able to work. They have been married 10 years and he has been supporting her all this time. She gets around £10,000 in allowances to herself and not really able to work. They have a mortgage in joint names. What will he be expected to pay in regards maintenance, property, pension etc??
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| A. |
The fact that he has been supporting her, will I am afraid probably mean he will have to continue in some way to pay spouse maintenance until she either re-marries or dies. he is also going to have to ensure she has suitable housing and that may mean giving her the house, as how will she be able to raise a mortgage?
I suggest he puts the individual facts of the case before a Solicitor. |
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Date: 15 Oct 2001
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
At the time my partner left his wife we had no intention of cohabiting
This was some 9 months ago and no progress has been made on the divorce in that period
My partner is completing the Form E and is uncertain on how to answer the question relating to cohabitation and decleration of assets.
What risk to my assets and earning is there if we chose to live together and declare this on the Form E as our intention. I am aware I earn a higher salary than my
partners wife and have recently purchased my own house. Would our combined salaries entitle her to maintenance, there are no children involved.
If we wanted to start our own family would this have a positive or negative effect on the financial settlement.
My partner is happy to offer her 50% of the equity from the sale of the matrimonial property and has divided the contents 50-50.
We would like some guidance on this matter prior to completing the Form E
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| A. |
Your capital assets are irrelevant unless you are to meet the capital needs of your partner i.e by providing a house for your partner. Your personal capital assets are not at risk .
Your income is however relevant to the extent that you will share the living expenses of your partner and therefore your partner's living expense will be reduced thus allowing more of his income to be available for maintenance. Much more information will be required prior to considering whether maintenance is applicable in this matter. You should formally instruct a solicitor who will advise you on both capital issues and income issues. It is always difficult to provide accurate advice without full and frank financial disclosure from both parties. Your partner is under a duty to give full disclosure and the document will be on Oath. He must explain his financial position fully.It is difficult to comment on the other point you raise. Naturally having children means that there will be less money available. His first duty will be to his first family. Although the Courts take a pragmatic view and recognise his duties to his subsequent children are important.
Hope this helps.
Frank |
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Date: 9 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
a friend has come home and found all his own and joint property taken from his house by his wife.They are currently in the process of divorcing and she moved out a couple of weeks ago.She's cancelled the joint account,transferred the bills to her own sole account and cleared out the savings.The house is on the market but he doesnt want to complete the sale until the divorce settlement is agreed as he will be left homeless. She is trying to force him out by these measures.
Will he get his property back? How and when?They had drawn up an allocation list which was with solicitors.
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| A. |
She is not allowed to do what she has done, and the only way to immediatley force her to return to the position before she undertook this action is to go to court to get an injunction. His Solicitors should be making the strongest protest about her actions and informing her that the actions will be brought up in the event of a final hearing as she could be penalised for her actions financially. |
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Date: 9 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am divorcing my husband for unreasonable behaviour. He inherited a sum of money from his father 2 years ago how much of this am I entitled to. I have 2 children who were adored by their grandfather and I feel if we had been divorced before he died he would have included them in the will.
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| A. |
As you were married when the inheritance came through, it is a marital asset. Whether you will receive part of the inheritance is another matter. It depends on what yours and your children's needs are. You need to see a specialist Family Law Solicitor. |
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Date: 30 Sep 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My wife has left me and applied for a divorce after 30 years quoting unreasonable behaviour as the reason despite the fact that Iwe have nearly always done what she wanted and bought what she wanted. We are both in our middle 50's and all our children have grown up and left home. We have had the decree nisi and she is now applying to the courts for an order for maintenance pending suit, a periodical payments order, a secured provision order, a lump sum order, a property adjustment order and an order under section 24B, 25B or 25C of the act of the act of 1973. My question is:- hoping that she will not get every thing she has asked for what can I expect as a worst case? We have a house which we are buying from the council under the right to buy which cost @ £12,000 and is now valued at @ £30/£35,000 but we still owe £11,000 at the last statement. I have no savings and owe @ £10/ £11,000 on a number of credit cards.
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| A. |
I am afraid that I cannot give specific advice to your case as I am not in possession of all the facts. However I can advise as to the factors which the Court take into account.
Clearly all the assets and liabilities of the marriage have to go into the ‘pot’. Whether your wife will dispute that your debts can be incorporated I do not know, but if they have been run up indiscriminately and money is cited in the particulars for divorce then she could argue this point.
The Courts will operate from the principle that the assets have to be divided equally, they then factor in various other issues which could mean that one person obtains more than 50%. These can sometimes be, difference in earning capacity, young children involved, age of the parties, contribution made to the marriage. As I say without knowing more about your specific situation it is hard to know.
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Date: 24 Sep 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My husband and I have been married since March 2000. I am about to divorce him on the grounds of unreasonable behaviour - domestic violence. The last incident was 3 June 2001. Since then we have been living together and I have tried to make things work but I simply cannot go on anymore.
My husband is 22. I am 30. He is Tunisian and moved here to the UK after the marriage.
I work as a Director and earn over £50k a year. He works presently as a security guard and earns about £15k.
When he first moved to London he lived with me in my flat which I had bought in my name. Since then we have moved, but the new flat is also in my name - as is the mortgage. All the bills are paid by me and in my name. We have no joint bank accounts and no joint assets.
When he first arrived - for about three months - I gave him a small allowance and paid for his English classes until he got a job. Since he started working, and in the whole time we have been married, he has refused to make any kind of financial contribution whatsoever. He has not contributed towards the mortgage or bills in any way.
My husband was planning to attend a University in Sept 2002 and I had agreed to help him with the fees (total fees £6,500 - I was to pay £5000)
My questions are:
1. Will my husband be able to sue me for maintenance?
2. Will my husband be able to sue me for half of the total value of my flat or half the equity?
3. Will he be able to hold me to the agrement to pay towards his University fees?
4. Is there a way in which i can offer him a fixed lump sum payment at the outset in lieu of any further claims on my income or estate? And if so, how would I go about this?
Thank you in advance.
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| A. |
Technically within the divorce main suit your husband could sue for both maintenance and lump sum, whether his claim would be successful is a different matter.
Certainly it is likely that he would be granted a small lump sum perhaps to cover his university fees but unlikely that he would have a 50% claim on the assets.
Factors the Court are likely to take into account are length of marriage, contribution by both parties, age and whether there are any dependent children.
I think there is a danger that a Court may grant him a maintenance order for a short time, certainly nothing in the long term,
I think it would probably be a good idea for you to seek advice from a solicitor certainly on the financial issues and perhaps deal with the divorce yourself. Within the main suit it is possible to have an order drawn up which prevents further claims in the future.
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Date: 19 Sep 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I am about to complete a Form E and my partner refuses to give me his Financial details. I will therefore need to leave this section blank. Could you please advise me of my and his legal rights in this respect and how the courts will view this.
Many thanks
Sharon
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| A. |
If you are co-habiting then you are under a duty to provide the information as requested on the FORM E. The Court could make a direction at the first directions appointment that the same should be provided.
In theory the other side could apply to the Court for a production appointment. This would mean that production of these documents are to be supplied. I think however that it would only be an issue if the fact that you are co-habiting has a bearing on the case.
If it is not material to the case then the Court may order that the same need not be provided, however it is unlikely that the other side will be happy without the information.
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Date: 14 Sep 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
please can you give me some advice. I have a Decree Nisi based on unreasonable behaviour. total matrimonial assets are £64k pensions (£52k husband, £12k me) and cash (£12k). we have been married for 21 years and have 6 children (from 8 to 19). He earns £25k and i earn 13k. my mother died in August leaving me a house worth £175k, mortgage free. My Husband says he should retain all his pension and all the capital. all the children live with me, and he pays maintenance via CSA. i receive no maintenance from him for me. we both currently live in rented accommodation but i will move to my mum's house asap. i don't feel the matrimonial assets are being split fairly but clearly don't want him to have an interest in my mum's house. any suggestions as to what would be fair?
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| A. |
All the assets of the marriage at the time of the application have to be taken into account. The court then looks at the contribution to the assets of the parties, then their respective needs for income and capital.
You could argue that your housing needs have been met from your mothers estate, but this does not meet your need for a pension upon retirement.
However that said you should seek independent legal advice. |
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Date: 7 Sep 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My father gave me property as a gift during the time that I was married. Is it possible that I could lose this in the divorce settlement with my husband? I thought that since it was a GIFT, and not something EARNED between us that it may not be legally divided.
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| A. |
The court has to take into account all the assets accrued during the marriage, including gifts or inheritance but also have to take into account the contribution to the assets of both parties, so it may be that the gift would be disregarded as he did not make any contribution to that asset. You need to take legal advice on the specifics of your case. |
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Date: 3 Sep 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I wonder if you could answer a question regarding how the courts take into account the financial contributions of 1 of the parties,as stated on the FORM E. One of the parties i.e me (in a short marriage of 2.5 years) contributed some £17,000 and my parents contributed some £8800.00 during the marriage.
We also have a 1 year old child who lives with her mother at the matromonial home (which is in joint names but I have offered my half of the equity as a full and final settlement,some £50,000-£55,000)
Will the fact that I have also paid all the mortgage for 10 months and an interim payment of £150 per month for our daughter for some 5 months, sway the courts in any way to enable any of this money to be claimed back and where will this money be expected to come from?
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| A. |
Contribution is a factor the Courts take into account particularly where there is a short marriage. However the child’s housing needs are also important.
I could not say what sort of order would be made but if the house is the only asset then your offer seems more than reasonable in the circumstances.
I would have thought that it would be unlikely for the Court to order that you walk away with nothing and she keep it all.
Various orders could be made.
Sale of house with proceed divided
Postponement of sale to later date (her remarriage, cohab or child finishing school)
I don’t think it likely that the Court will let you walk away with nothing.
Go and see a solicitor who can ask you more about the case and give you proper advice.
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Date: 28 Aug 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Myself and my soon to be ex-wife have just had a consent order approved by the courts with respect to ancillary relief. As part of the settlement there is a requirement for my ex-wife to assign her interest in a 15 year old joint with profits endowment policy to myself. (i.e On maturity all benifits would be payable to myself.)I have now received from the respective insurance company a deed of absolute assignment which I must complete and both myself and my ex-wife sign. My concern is that the accompanying letter suggests that their could be tax implications depending on circumstance involved in the transfer. They also suggest that their standard deed of assignment is not suitable for all circumstances.
Please advise:
A. Are there any tax implications for myself in this assignment?
B. Do I have to go to the expense of having a solicitor draft a specific Deed of Assignment?
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| A. |
I am not allowed to advise in this area as it constitutes financial dealings.
However from April 2001 an additional tax regime is being implemented which could mean that you would be liable for tax on the transfer. (it could also only apply to those on a higher tax bracket)
It does depend on when the policy was taken out.
Speak to an independent financial advisor on this before the transfer.
You will have to comply with the terms of the order though so the advice could be incidental.
You don’t necessarily need a solicitor to draft the deed, however without knowing the specifics or seeing the draft from the Company I cannot say exactly.
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Date: 18 Aug 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
my husband has left after just under 2 years of marriage, his mother tried to throw me out of the house but to no avail, he is now living with her. When he comes to collect the children his mother comes with him, ive tried the police but they say that there is nothing they can do. She comments on the state of the house and passes comment on my upbringing of our daughter. I do not want this woman in my home but as the house is in his sole name can i prevent her coming in with him?
Also his parents are buying him another house to live in , how do i stand if he doesnt pay the mortgage on this house.
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| A. |
If the mother in law is harassing you, you may have grounds for an injunction to prevent her from coming to the house. You will probably need expert advice in this area from a solicitor or your local CAB as they can ask you more about the specific facts.
The long term issue of the house needs to be sorted. If payments are not made on the mortgage then ultimately the mortgage company will repossess. However if you need the house for your and your child then this could affect a financial settlement.
Without knowing all the facts it would be wrong of me to advise. Go and seek advice!!
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Date: 15 Aug 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Should I agree to the sale of our house before financial arrangments have been completed by the mediation?
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| A. |
It depends on what other assets are left to be sorted out as part of the package. My instinct would be to say no, wait until you have a mediated agreement before agreeing to put the house on the market. it is unlikely to lose any value in that time, indeed the value will increase. |
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Date: 13 Aug 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
A man divorces his wife, signs over everything and in ancillary documents states he is giving her everything they own as he wants out of her life for good.
A year later she discovers he won a large lump sum prior to the divorce, which he has been secretly investing. He has kept all the money off-shore. Is this perjury, and can he be extradited back to the UK from Australia?
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| A. |
Failure to disclose assets you have to the Court not only could result in perjury charges but also would be grounds for your wife to reopen the case. That is, she could apply to the Court to re hear the case on the basis that the matter was not dealt with properly as the Court did not have all the facts.
The man would almost certainly be penalised on costs and the implications could be more serious if he is shown to have lied on oath.
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Date: 11 Aug 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I was married for 8 months, when my husband moved out.I brought the house we shared 6 years before I married. My husband has not contributed to the household bills in this time all the bills (mortgage etc are in my name). We have spoke about divorcing my husband wants half the evalue of the house is he entitiled to that amount?
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| A. |
The answer is probably not, as his contribution has been minimal. I would however get legal advice as soon as possible as the court has to take into account other factors such as need etc into account as well. |
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Date: 10 Aug 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My final hearing is in 6 weeks. My ex has asked for a delay because his barrister is on holiday. We have a whole day booked and I think we would have to wait months for another date? I think this is yet another delaying tactic. There have already been delays by him denying paternity, & a delay in returning his financial disclosure, just to name two. I would just like to get on with it. How do you think the Court would view this? And can you think of why he would want to keep delaying. Thank You.
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| A. |
I don’t know enough about the case, enough about the local Court to know whether this matter is appropriate for an adjournment. If his counsel has been substantially involved in the case and it has been hotly contested with a number of interim directions appointments or hearings then the Judge could deem it reasonable for a new date to be ordered.
However it is unusual for the Court not to liaise with counsels clerks over dates when cases are listed for one day.
Your solicitor would be able to give you more idea of advise in this area.
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Date: 8 Aug 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been separated from my husband for over three years now. He left with considerable debts which has caused me to have a poor credit rating. Due to a credit card debt in his name there is now a charge order on the house. My understanding is that this relates only to his share of the house on which we have a joint mortgage. I have been paying the mortgage and other bills for the last six years.
I want to divorce and transfer the house to my sole name. What effect will the charge order have on this?
We have three children for which he has paid voluntary maintenance since he left but this has not been reliable and sometimes I received nothing for months. The CSA have recently started to collect maintenance payments from him and have told me they will collect for what they have judged as an underpayment. What powers do they have to collect this money ?
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| A. |
The CSA has very good powers to collect and can order an attachment of earnings, take direct from his bank or apply to seize goods if necessary. The ultimate sanction is prison. |
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Date: 6 Aug 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My husband left nearly 2 years ago & we are still battling over the financial settlement. We have a 4yr old daughter. I have recently become pregnant by someone I am unlikely to continue a relationship with. How could this new pregnancy / child affect the financial settlement?
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| A. |
Your husband will obviously not be responsible for the child but it could have a bearing on capital issues on a short term basis. Without knowing all the facts of the case I cannot say for definite. Your earning capacity will be affected and therefore your needs in this regard will be important however the Court could be concerned for your Husband not to be penalised for the additional child. It will be a balancing act.!!
Obviously you would be entitled to maintenance from the child’s father for their upkeep.
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Date: 1 Aug 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I am in the process of getting divorced and the court has not issued the decree nisi on the basis of my wife claiming financial hardship.
Can you please advise on what
What does it actually mean
is the process to be followed (what I need to do) and the time it can take.
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| A. |
It means that you will have to reach a financial settlement with your wife before the court will grant the Decree Absolute. If you get the decree absolute before sorting out the finances and you die, your wife could lose out particularly in relation to her pension entitlement. So if you havent already, go and see a lawyer and sort it out. |
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Date: 27 Jul 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner and his ex-wife have been divorced for 6 years. She left him, taking his five children to a rented property. He remained in their mortgaged property. She then had a child by her new partner, who subsequently left. After 2 years my he moved in with me, and told his ex that she could move back into the FMH, with the mortgage being paid jointly by him and the DSS.
Six months after moving in with me, his ex moved her new partner into the FMH and has now had a child by him.
We were contacted today by her solicitor, who says she wants my partner to make the house over to her with no financial consideration. As he has been paying the mortgate for over 16 years, and she has been co-habitating for over 18 months, can she insist on him giving up his share in the property.
We have complied in full with the CSA in every respect, and pay by direct debit all monies they ask for.
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| A. |
On thew face of it your partner is entitled to a share of the equity, regardless of whether she has a new child or not. The question will be how much and when should he receive it. the fact she has a cohabitee and a child by him will assist the court in deciding whether the property should be sold.
I suggest you obtain legal advice now. |
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Date: 3 Jul 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I was divorced three months ago and have not yet sorted finances and was trying to do this amicably but talks have broken down. I want to get remarried asap but understand I must make an application for ancilliary relief before I re-marry othewise I will be debarred from doing so.Am I considered to have made a financial application when I file Form A or Form E?
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You will have made the formal application upon filing form A, form E being disclosure within the proceedings. |
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Date: 3 Jul 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I have been married for 16 years and have 3 children. My husband has never been a very good provider, mainly because all he ever wanted was have his own business. Over the years he set up a few business (from letting agencies to recording studios). None of them worked out and in the end lots of money was lost.
Because of continuous financial problems, the relationship has not been a very happy one.
Last November he finally told me that his last business had taken pearshape and that he had lost it all (again). By then we had a nice house with a reasonable morgatge (I thought) and 2 children in private schools (money provided for by MY father and in a trust fund with me and my husband as trustees).
Although I suspected that things were seriously wrong I was still completely shocked when my husband told me that the trust of the children was used toward paying debts, investing in his last business, etc. I must confess, I have been stupid for not having been more controlling, but then my husband is a very very dominant and controlling person. After 18 years being together I am not the same person I used to be.
After spending one month at home - basically doing nothing else but watch TV - he started looking for a job. He was offered a job as a sales manager in a real estate agency (£18,000 + comission) almost immediately. He then decided NOT to accept it but DID accept a comission-only job as a salesman of financial products for an off-shore brokerage based in Indonesia.
Almost immediately after his departure to Indonesia, I started to receive letters from bailiffs, court orders, etcetera. I then found out that the morgatge had gone up from £40,000 to £110,000 + arrears; that he had not paid council tax for 3 years; that he owed 5-figure sums to most of the best-known banks; etcetera.
My life just fell apart. I took my eldest son out of private school; cancelled all school arrangements for my youngest son. A good friend of mine recommended me to contact one of her best friends, a divorce lawyer.
To start of, I thought the world of this person. But bit by bit I started to dislike him and now I don't trust him a bit.
I went to this lawyer mainly to seek advice on how to get the house on my name and how to distanciate myself from my husband's creditors.
He recommended me that the only way to get the house (jointly owned) on my name and distance myself from my husband's creditors was to go for a divorce.
I started with this person in February, we are now in July and the Decree Nisi will probably begranted within 6 to 7 weeks.
He has told me that he was going to put a caution on my property, but when I spoke with the land registry, nothing had been done. When I called him to tell about my discovery, he was really cross.
With regards to the house, my husband has agreed that I can have the house and the contents. When I told my sollicitor, he told me that we can't do this because my husband's creditors would take my part also.
He says that I have to wait until I have the decree absolu before I can even think about trying to organise the house transfer. He told me that he will apply for a court order once the absolu is granted.
Is the advice given correct or am I been taken for a ride?
With thanks
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| A. |
Yours is a complicated case and whilst I cannot comment on whether your solicitor has acted properly or not what I would say is that f you are not happy with him you need to avail yourself of the firm’s complaint procedure.
My first concern would be that there is no caution lodged on the property. If the property is in your Husband’s sole name and is registered then you need to lodge a notice under the Matrimonial Homes Act. If you do not do this then the house could effectively be sold or repossessed perhaps without you knowing.
I cannot understand why your solicitor has said that finances cannot be sorted until after decree absolute. More often than not applications for ancillary relief are lodged quite early on the proceedings, and certainly without a financial settlement being agreed I would not recommend applying for the decree absolute. However I must stress that I do not know the full facts of your case and therefore any advice I give here is blind.
Go and see the solicitor if you are not happy with his response or feel that you have lost confidence then seek an alternative lawyer. The choice is yours and do not feel intimidated we are after all only human.
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Date: 25 Jun 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My fiance is divorced, although he does already have an absolute decree he has not as yet got a final financial settlement with his ex wife. She has the house and a car which was offered as the financial settlement, she is currently living with a boyfriend. She has 3 Children 2 of which are my fiance's and he pays £100 per week maintenance for each. He also buys all their clothes etc for them takes them on holidays and sees them a minimum of 3 days every fortnight. His exwife does not work, I am not sure if her partner is working either at the moment. We would like to have a financial settlement in place before our wedding takes place what is she entitled to from him? 2/3rds? Does maintenance for his ex wife still apply once we are married and he is supporting me or is he only responsible for maintenance payments for the children? What effect with this have if we decide to have children of our own?
Thanks
abby
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| A. |
I cannot possibly advise on a financial settlement without the full picture. Your fiancée should instruct a solicitor to make an application to the Court to have the finances determined if no progress is being made to deal with matters by consent.
Sometimes inequality of asset distribution is appropriate, ie, one party has the children and has a lower earning capacity than the other. However I cannot say whether his wife has a maintenance right. If she is cohabiting this could have an impact on her right to spousal maintenance but it is not a definite position that cohabitation means no maintenance. However her remarriage would mean that any maintenance payments to her would cease.
Your marriage to him would not necessarily mean that maintenance to his ex would cease. However having children of your own could mean a decrease in payments to her.
Bear in mind that if you marry before a settlement is in place your partner could not apply to the Court for a financial settlement so you need to get things moving.
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Date: 18 Jun 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
We have been married for 21 years. Two weeks ago my husband left me to go to Romania to be with the woman he says he loves..also to start a new job.
We have three children. One is 12 and two are 18 and about to go to uni..but living and staying at home. We own our house outright and have no debts. Last year we built an extension on the house to accomodate my elderly parents.Paid for by them but with no legal documents to prove that.
I am not realy sure if I wish to seek a divorce but want to know how to go about making sure that he pays me mainatence regulary. I qualified as a teacher but as we led an expat life I didnt follow my career and now am only working temporarily, for the first time in 21 years. I have been aproffesional mother and wife.
What should be my first step in securing myself legaly.He has said that he will send money but I know it is less than half his salary.As yet no money is coming in but then he has only ben gone two weeks. I have no contact address for him but I do know that he opened a seperate bank account at the HSBC. I have no means of finding out what address he gave for that account. He sasy that he will send details of contact address when he has it . I think he will take his time over that.
What is my legal position? Would I be better off divorcing him or getting alegal seperation. What do I do? Where do I start?
Many thanks
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| A. |
Without divorcing him it is difficult for youto get maintenance from him for yourself. You have to use legislation in the Magistrates Court which deals with failure to maintain a spouse. You can of course obtain maintenance for your youngest child, however this could prove difficult if he will not co-operate with the CSA.
What divorce proceedings give you is the ability to apply for maintenance for yourself both in the interim period prior to a full settlement and afterwards.
My advice is to see a solicitor immediately. You need specialist help to protect both you and the children. I am afraid that Court proceedings are sometimes inevitable however just because the legislation is better within divorce proceedings it is not always a reason to get divorced. You should only do this if you are personally ready to do so.
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Date: 17 Jun 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
Dear Sir / Madam,
My wife asked for divorce. She have some assets in an other country from her first mariage My question is: will her assets outside UK will be taken into consideration under British divorce law
Kind Regards
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| A. |
Yes absolutely. When getting divorced in the U/K worldwide assets are taken into account and there is an obligation on both parties to make what is known as full and frank financial disclosure which means disclosing all assets whether in their sole names, held jointly or in someone else's name on their behalf. |
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Date: 17 Jun 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My soon to be ex is divorcing me on the grounds of unreasonable behaviour. The house that her mother and father lives in was transferred into her name (deeds changed etc) to prevent her brother inheriting. She changed the deeds back into her parents names when she started proceedings. Should this be declared on Form E, would this be classed as she transfered assets out of her name to avoid disclosure?
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| A. |
It is possible that the court would consider this to be a transfer to avoid disclosure and the transfer can be overturned by the court, if it is judged to be so.
The transfer and reasons for it should have been disclosed on Form E.
You should take legal advice on this question. |
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Date: 17 Jun 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
married 22 years three children still at home aged 21, 20 and 16 years. My wife now wants to leave. she has just got paid off from a will (£12000). The children want to stay here. We have joint debts of about £2000 and the house is council owned. What if any, rights do I have to a share of the money (paid to her) thank you
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| A. |
The inheritance forms part of the assets of the marriage technically. However you ought to do something about it sooner rather than later as your wife may spend the cash.
There are applications that can be made within divorce proceedings to stop people disposing of assets with a view to thwarting claims by another but whether you would have grounds for this it is difficult to say.
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Date: 12 Jun 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
There is 40 to 50k in equity in the house if we sell it, if we split the money then my wife would not be able to get a mortgage as she doesn't earn enough to be able to get one. We have two children 7 and 3 they would be living with her, would she have to have all the equity in the house so she could buy a house outright and me have nothing. What usually happens in these circumstances
Also I had a private accident insurance policy which paid out 24K for a road accident that I had for the injuries I received, which made me retrain for another job there is about half left after putting some off the money into the house (6-8K) will she be able to claim half of this money as well.
My wife wants to leave me after 11 Years of Marriage as she says we don't get on anymore.
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| A. |
The court will want to ensure that the parties are able to have housing and that may mean that she would receive more than 50% of the equity if it meant she could then get a mortgage.
It is a matter of common sense and not about percentages.
If you have additional capital, then there may be an argument that it should be taken into account as far as the division of the matrimonial home is concerned and whether you will therefore be able to re house your self.
You will need to get some specific legal advice about your case, even if only to be able to make a sensible offer of settlement. |
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Date: 11 Jun 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife walked out on me 10 weeks ago leaving me with 2 children aged 14 & 16 years and debts of £1500. She took a savings policy of £5000 and the family allowance which she has been claiming even though shes only had the children to stay 7 days in all. She earns around 12K having voluntarily gone part-time since last September and I earn 35K. We are currently undergoing mediation at her request but she has failed to declare an ISA in her name and so far is demanding half the equity in the house, half my pension and maintenance insisting her solicitor says shes entitled to this at meetings. I can just about live on my salary with my present outgoings and pay off some of the debts but have little spare money. What would you advise. Is she entitled to this. I gave her £500 to try and pay off some of the debts before she left and have taken loans in the past when shes been in debt before. What are my options?
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| A. |
If you will be looking after the children, then they need a home and you need as much income as you can get to maintain the home until they are at least 17 years old.
She is also going to have to pay Child Support to you.
I would not agree to what she is proposing whatsoever and indeed I believe she is not getting legal advice as what she is telling you is beyond belief.
However, I would advise you get your own solicitor to at least give you some more specific advice in order to be able to make a counter proposal that is more realistic. |
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Date: 9 Jun 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
Dear Sir/Madam,
My partner and his wife have reached the decree nisi stage but cannot come to an agreement about the consent order (finances). He does not have a solicitor and has no intention of getting one. She has a solicitor and is refusing to sign the decree absolute until she gets what she wants, which is very unreasonable.
I understand that he can apply for the decree absolute 3 months after she could, and that time is now upon us. I have a few questions:
1. Her solicitor has said the court will not grant decree absolute until finances are sorted. Is this the case?
2. If it is worth my partner applying, the form you use for a decree absolute has a space for solicitor's name and address. Does this mean that he has to have one?
3. With regards to the finances, my partner is serving in the forces and upon leaving will be entitled to a pension and gratuity. It is currently uncertain how much this will be as he has served 13 out of a possible 22 years. My partner was married to his wife for 8 years before they separated in Oct 99. How much, percentage wise, is she likely to be entitled to?
4. It does not look like my partner and his wife will come to an amicable agreement about finances, and he has said that he will let the judge decide. How is this instigated?
Many thanks in anticipation.
Becky Terry
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| A. |
In response to your questions:
1. the court may not grant the decree absolute until finances are resolved. It depends on the specific facts of the case;
2. No he doesn't have to have a solicitor but he may find that if he does get one, he may be able to finalise everything.
3.She will be entitled to some compensation for loss of pension rights but again you can't look at the pension in isolation. It needs to be considered with everything else.
4.Its very easy but he really should get legal advice. The court will help him initiate the proceedings if he doesn't get a solicitor. |
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Date: 7 Jun 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been married for ten years and have two children seven and ten. My wife cannot work as she has MS and receives invalid benefit. We are in the process of seperating and would like some advice on finances. If my wife stays in the home we now share and I move out do I still have to pay the mortgage or any bills. Is it correct that I will have to pay maintenace of approximately 20% of my wage. I earn £18,500 a year?
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| A. |
Firstly you are obligated to support your children and the figure you give is a rough estimate. I suggest you use our Child Support calculator to get a more realistic estimate.
You may also be liable for maintenance to your wife if she cannot get any more benefits. In some cases it may not be to her advantage to get maintenance if it means a loss of benefits. This ties in with the mortgage and house hold bills.
You then need to look at the other assets, which appears to be the home. Your wife is going to need a home for her and the children. Can she take over the mortgage, etc.
I am afraid you are going to need proper legal advice and I suggest you go and see a specialist family law solicitor.
You may be eligible for legal aid. |
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Date: 5 Jun 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I separated from my partner of 4 years in Jan 01. I received 28k maintenace for our son who is 3, and a 20k gift from him amd his parents total 48k, which I used as a deposit on a house. I have a mortg of 62k. My ex is very wealthy owning a farm worth at least 500k and has recently been gifted 250k by his parents. Is there anyway that I can get him to provide more for our son so that I can buy a house with more land which is what we are used to. It seems unfair that we have to endure virtually no garden while he sits on 110 acres. I have suggested he gift us some land so that we could build but he wont do this. He sees our son regularly. Our settlement was formulated by solicitors but I think I short changed myself. I think also that his parentas have recently invested 40k for our son in his fathers name. Could I request that?
Many thanks
Jane
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| A. |
Firstly I am not sure of whether you were married or just living together. The advice given in each situation is completely different.
It would appear that you received the majority of money for your son and as such I will assume that you potentially had a claim under the Children Act for a lump sum for his benefit.
I cannot advise you on whether the settlement is reasonable as I am not aware of the full facts of the case. Also if a settlement was reached it is highly unlikely that you can go back for second bite of the cherry. As you have had a solicitor it may be good idea to check out your queries with them.
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Date: 4 Jun 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I have an appointment with the district judge for first directions in a Financiual Dispute Resolution. We had to file form E's by May 16th 2001.I am unrepresented. On May 17th the court sent copies of my form E to my wifes' solicitor (I watched them do it), but returned her sealed form E's to the solicitor to serve on me. To date ( June 4th) I have still not had service of the forms and have to submit my questionnaire by June 6th. The order said the forms should be exchanged at the time of filing, but I read that it can be 4 days later. In any event it has taken almost 3 weeks and they decline to communicate with me over it. How can I get service, as I now have insufficient time in which to draw up my questionniare and may have to cancel the appointment.
Paul
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| A. |
You will not have to vacate the appointment. The solicitors are under an obligation to comply with the Court time limits. The Judge will not be happy if he sees that the FORM E was filed and no copy has been sent to you.
If you do not receive it by the Court hearing don’t worry. Go along to the directions appointment and tell the Judge. They will be given short shrift if they have no explanation.
Your case will not be prejudiced by the delay. It might be an idea to send a letter to the Court before the appointment, (NB make sure you write on the letter when the hearing is so that it reaches the file in time) explaining what you have done and that way the Judge will have an idea of whats happened.
Don’t worry about the Judge will make sure that as a litigant in person you will not be effected by the delay.
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Date: 4 Jun 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Been separated from partner for nearly 2 years not heard anything from her. Her name is not on the house deeds etc. I want to get a divorce but will she be able to claim anything e.g money, half the house etc.
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| A. |
I am afraid the answer is that she may have a technical claim, but may not have an actual chance of getting very much. You have not given enough information to be more specific. |
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Date: 3 Jun 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband and I have agreed to separate, I made the decision. I will be the one moving out of the marital home but need to know how to safeguard my finances with regard to the house and any thing else I may be entitled to. Our joint bank account is now in my husband's name only and he pays for the mortgage bank loans and building insurance. All other payments- gas,electric,phone,2 endowments, water rates, insurance and TV licence are paid from my own account. When I move out all these will move to my husband's account to enable me to hopefully live on my salary but I'm not sure it will cover everything. We have 2 children aged 16 and 20. Both in full time education. What do I need to do next? We are still friends and able to talk but I feel things will not be any better for me until I move out. But need to be sure I can cope financially.
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| A. |
You need to see a Solicitor to get some advice. Most Solicitors will give you a free appointment and from what you say, you might be eligible for Legal Aid. You will need to consider whether your income can cover your bills. if not you may be able to obtain some top up from your Husband, in addition to any child support. You also need to ensure you will be able to retire, without being on the bread line and should consider whether a pension sharing order would be appropriate.
For more specific advice please feel free to use our LegalAssist service to obtain a free consultation with a local Solicitor. |
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Date: 2 Jun 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
This is on behalf of a friend. After living as common law husband and wife for 8 years they were married. He left her in February of this year after 2 years. She had a child (now 13) when they met who lived with them the entire period. The house is in his name only and was bought 8 years into their relationship. She does not work but claims sickness benefit. He is now living with my husband and I. Is he liable to pay maintenance for the child? Where does he stand over the house? As only the interest is being paid there is very little equity in it. Is she entitled to half of what there may be ? Can he sell it without her consent? Can he sign it over to her and be done with it? The marriage has broken down because of her behaviour. Thanks
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| A. |
Lots of questions. Firstly because they are married and it formed the matrimonial home, even though its in his sole name, he can't sell it under her feet. By the same token because there is little equity, even if he did transfer it into her sole name, the bank or building society would be unlikely to release him from his obligations under the mortgage. He needs to decide what he wants to do. She may be entitled to housing benefit which might assist. with regard to the child, the child would be considered as a child of the family but he is not necessarily liable to pay for the child especially if the child has a father who pays maintenance. I suggest your friend sees a solicitor who will be able to look at all the facts and advise him more fully.
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Date: 1 Jun 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My wife and I are going through an amicable divorce, we have two children ages 4 and 7. We are selling the house and hope to have at least £75,000 after the sale. I have offered my wife my half of the £75,000 as a one off maintainance payment, as this will more than help her to purchase a new home for her and the children, I myself have to start from scratch, she works and earns around £17,500 per annum, I earn around £20,000 per annum. I have maintained that I want to look after the children, and I think that the sum offered is fair, as well as the whole contents of the house, we both agree that she will have a smaller mortgage to pay and should manage on her salary, not to say I won't help financially for the children but it will be purley at my discretion , can such an agreement be drawn up legaly? What is the normal division for assets as we have always paid 50/50 in the ten years of marriage, is it in my interest to just divide the money in half and pay an agreed sum per month? Its unfortunate we have this problem , but it is not my wrong doing and my wife has admitted it is really not my fault, and will try to be fair with me . Many thanks for your time .
John Manclark
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| A. |
When dividing up assets on divorce, the reasons for the breakdown seldom have any impact on the outcome. So the fact that its "not your fault" makes no difference. From what you say, there is no reason why there shouldnt be an equitable division of assets. However there is an obligation for you to pay maintenance for your children. |
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Date: 30 May 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I have been living with my partner for about six months. His wife is divorcing him, and they are in the process of sorting out the finances. One of the questions on Form E asks about partner's assets and income. He has no financial interest in my property, which I intend to leave to my children, and at the moment he is paying me a salary, as I am working for his company. Do I have to disclose my assets to him, so that he can enter them on Form E, and does he have to give details of my income? I do not wish his ex-wife to know the value of my property, or about my income. Thank you for your advice.
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| A. |
I am afraid that if you are cohabiting then he must complete those details on the FORM E. If not then the Judge could make an order that this information be supplied at the initial directions appointment. He could try and argue that they are not relevant but the other side will no doubt argue differently.
If your partner has no interest in your property then this needs to be clearly stated. If you are intending for the same to be placed in trust for your children then indicate that also.
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Date: 29 May 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have a decree nisi, and am in the process of settling finances. We have 6 children ranging from 8 - 19 and have been married for 21 years. i have just gone back to work full-time after 10 years at home. The house is rented . ex pays maintenance for 5 children at £375 from CSA assessment. He quotes white v white case and says he wants 50:50 split of assets. what was this case? Also he says he will refuse to support children from age 17 onwards and my solicitor says he can do this. Is that correct? I intend to go to court to settle finances as his best offer is a 53:47 split. i have all the children to look after. would a court support the white v white ruling?
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| A. |
Firstly, White-V-White was a big money case involving two parties with business assets and where both parties made contributions in different ways. Most cases will not be affected by this case as the court will still look at the needs of the parties, their contribution to the assets and their respective incomes. If your Husband has greater earning capacity than you, it will mean a greater ability to raise capital and a 50/50 split may not be appropriate.
Your Solicitor may want to take a barristers oppinion if you are unhappy with the advice they are giving you.
As for child maintenence this will normally stop at 17 or until they finish full time education, whichever is the latter. |
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Date: 28 May 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I was fortunate to have enough savings to employ fairly expensive solicitors when my ex husband decided to divorce me, age 50. Through them, I made a new will in the form of a discretionary trust. I understood that this standard trust was a flexible will that could be altered easily. However, two years later when I made a few alterations, the bill was even more than the trust had originally cost. I am now on a low maintenance income, but wish from time to time to review the will and make changes. I can no longer afford to go to the original solicitors. If I approach a cheaper firm, would they be obliged to treat it as a completely new project and charge accordingly? Now that my children are older, I do not mind if they inherit everything without trustees.
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| A. |
You really do need to take the old will and discuss the changes that you want with them. Its unlikely to be as expensive as you envisage but make sure you see a solicitor who specialises in wills and trusts so that you are properly advised |
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Date: 25 May 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Hi ... hoping you can give me some advice ...
Married 22 years. Two children, youngest just turned 18.
We have not lived as a couple for many years, and I moved
out almost 2 years ago. Wife remains in the family home with
me paying mortgage, all bills and all outstanding debts,
as well as supporting the children. I live in rented
accommodation.
Going through divorce and settlement was postponed
because one of our children was seriously ill, and since
things were amicable it seemed best to protect him from
the trauma of divorce until he recovered.
I'd now like to move things forward. However, my wife
has been advised by some well-meaning friends that
it is in her best interests to delay the divorce for as long
as possible. The reasons for this are:
a) she is currently living an all-expenses paid lifestyle
which she would like to enjoy for as long as possible
at least cost.
b) she only works part-time, despite having a good
university degree, and in fact has hinted that she
would like to retire (she is 42). At the moment, she
feels no obligation to fund her lifestyle or contribute
to the children's.
c) I work very hard (70+hours/week) and my earnings
reflect this. As a consequence, my income represents
around 90% of our joint income. Most of this goes
towards repaying debt or into investments. My wife
believes therefore that every year she delays divorce
she gains half of my income and an entitlement to a
bigger settlement.
d) As a result of my efforts at work, my salary is rising,
and so is the value of my salary-based pension. My
wife believes also that by delaying she can maximise
the value of her 'share' of the pension.
e) She is hoping that if she can delay things until she
is nearing 50, she can argue that her ability to support
herself is reduced, even though she has had ample
opportunity to build a career for the last 8 years.
f) She has heard that the length of marriage and her
age may help a good lawyer argue for a settlement
of 70+% of the assets at the time of divorce.
I had assumed that divorce settlement would be 'fair',
and would reflect the contributions of each partner
before and after separation. However, the picture my
wife paints does not reflect this, and if accurate, almost
makes it senseless for me to continue working, since she
would apear to benefit from this more than me.
What I would like to know therefore is:
1) Is my wife likely to benefit to the extent she thinks
she will from delaying our divorce?
2) If so, are there any legitimate measures I can take
to minimise this? Eg put money in trust for my children,
etc., or would this be damaging to my case.
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| A. |
Answer
The problem you may have is that if your wife will not agree to a divorce based upon two years separation by consent then ultimately you will have to wait five years before you can apply to the Court and then within those proceedings apply to have finances dealt with.
Obviously the Court will look at the finances of the parties at the time of the application but consideration would be given to those issues you raise above. That is your wife choosing not to provide for her retirement, your wife choosing not to work any more than part time.
If she did not have the capacity to work then clearly that would also be taken into account.
You are in a difficult situation. Whilst it is not a good suggestion to make as we are solicitors try to adopt a conciliatory approach you could try making life a little harder for her on the financial side by refusing to contribute to everything you do now. This may force her hand, ie, divorce which will open up the Courts option for you on finances.
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Date: 25 May 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I separated from my wife last year, and the decree nisi was granted this month. My wife is 39, and we hae children of 11 & 7. We have been married for 15 years. My wife hasn't worked for 12 years as she has been a mother and housewife. We jointly own a home in Hove which is worth over £250k, and has equity of £165k after the endowment and loan ( 6 years old.) Her mother supplied £50 k and my mother £ 15 k tothe house. After we pay them back the equity to be split would be £100k. She issued a petition for divorce soon after I left the matrimonial home and moved into a rented room in a house with other tenants in London.
She has started a study course which she says will take 5 years to complete, therefore she will not earn money to contribute to the mortgage. So at the moment I am contributing £24,000 cash a year to her and the children, and living off the rest of my income which leaves me £16,000 cash. This has been hard for me as she lives in the luxury of our home, and I pay everything for her, and I also have to pay rent on a room, all my expenses, and I calculate that over a year I require £ 21,000 to stop going into debt on credit cards. This extra £ 400 a month I need would, she says cause her tonot be able to pay the mortgage on the house, and feed/clothe the kids and her self. I don't see therefore how we can all afford our lives without me going into debt. I just paid of the debt from last year of £5000 on my VISA after a settlement from a previous employer.
I have suggested that we sell the matrimonial home, and then using the £ 100k equity, and the £ 65k of our respective parents, we buy a new house in a cheaper location for her and the kids outright, so I can save £ 700 a month in payments to the building society and the endowment. I have sent her details of many nice 3 bedroom houses in Brighton in this price range, but she refuses to move out. I think she is embarassed about moving out of a nice area, but I did, and live shairing a double room in a grotty part of north London with a new girlfriend payinf £440 a month. I don't see why she won't do what I suggest, because she would still be housed, albeit not to the same standard. I have traded down and would now like to purchase a 2 bedroom flat for myself and partner, and be able to have a room for the kids when they visit. I need a mortgage of nearly £ 200k to achieve this.
We are unable to agree anything and we bot just threaten to have the courts settle it. Can you advise me of a likely outcome of this matter before we go down that road. It seems very unfair that she should be subsidised by me in her palace, while I live in a shed.
Thanks
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| A. |
I cannot give you the answer that you want. All I can do is advise you on what the Courts take into account.
The principles are that the Court begin by looking at the assets globally and start off with an equal split. However special circumstances then come into play which could mean that one party gets more of the assets than another.
Leading case law does not give us any indication as to what those special circumstances are but in my experience they tend to be length of marriage, contribution to marriage, disparity in earning capacity and who houses the children. In the circumstances it is likely that your wife will get more than 50% of the assets. From what you suggest it would seem that you are prepared to give her all the equity in your home. That may be appropriate with you then receiving money at a later date, this is usually what is known as a Mesher order. I think that your wife is at risk from losing an application to stay in the house as there is money for her and the children to be adequately rehoused elsewhere.
If you have spent months negotiating a settlement and have got nowhere it may be worth applying to the Court at least that will impose a timetable on the case and you can see the end of the matter.
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Date: 24 May 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Can you please explain what is financial prejudice and can you give me examples of what constitutes financial misconduct and when can it be raised in proceedings?
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| A. |
Financial conduct or prejudice is moving assets abroad, spending capital to avoid a claim, being irresponsible with money to the detriment of the family and keeping the other party in the dark about finances.
However in order to raise financial misconduct the other party must raise it in Form E the financial information form you file at the outset of the case. it is for Judge to decide whether it will be an issue at the final hearing. |
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Date: 16 May 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I am considering divorce after 12 years. I have 2 children aged 10 and 12. I now have the option of living abroad and I can earn money tax free outside the UK. I would like to know if a court order can be made to freeze assets for an offshore account (IOM) which is in my name only. Whilst I intend to make provision for my spouse and children would a court order for maintenance apply to a UK passport holder residing overseas. If maintenance was paid would access be available to the children?
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| A. |
Money and children are entirely different issues and should always be treated as such. If you move abroad, you will still have right of contact with your children but how often and where will depend on what you and your wife can agree. If you can't agree, the matter would go to court and the court would decide. When dealing with money, there is a duty on the part of both of you to give what is known as full and frank financial disclosure which means both of you have to disclose to each other absolutely everything you own whether it is in your own name, held jointly with another or even held by someone else on your behalf. This includes off shore accounts. You will have an obligation to maintain your family and assets can be frozen if it appears that someone is likely to dissipate the assets with the intention of effectively hiding them to avoid bringing them into the equation. Your obligation to maintain your family will exist irrespective of where you live! |
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Date: 13 May 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I have been seperated for over 2yrs and we have sold the house 2yrs ago and split all proceeds equally.
My nisi date is early June with a completion date in mid July all being well, my husband is now threatening to 'take half of my possesions because we are still married'
This includes my car which my parents bought for me following the seperation (although it is registered in my name the loan is in theirs) as well as other items which I bought with half of the equity from the house.
we never actually signed an agreement after the sale to state that we were happy with the split after the sales, but luckily my manager at work deliberatly witnessed me handing over the cash (as the cheque from the solicitor was all in my name) to my husband.
What can my husband do to me, to try and take half of my belongings when we have allready split all we owned jointly?
Also he is refusing to sign the paperwork that states we have no claims against each other financially and I am very worried that this will either stop or delay the divorce from completing... what are the implications of him not returning this paperwork to my solicitors? can the divorce still proceed as planned?
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| A. |
The divorce can proceed as planned but as your husband is being difficult, you really do need to try to get him to sign the agreement to confirm that you have no other claims against each other. He will not be able to simply make claims against you without going to court if you don't agree which is expensive and time consuming. He can't simply demand assets from you. You can complete the divorce without completing the finances. However if he is the one who wants the divorce, then you could try to hold it up until he signs the agreement. If you want the divorce, you can go ahead and argue out the money later. Be aware though of pension claims which you would lose on decree absolute although I am not sure whether this would be relevant in your case or not as I do not have enough information. Check it out with your lawyer. |
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Date: 11 May 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
After being separated for 3.5 years, I have now received divorce papers from my husband. I do not intend to defend the case, but at the time of separation we did have a visa card (in my name, with my husband as a card holder)in excess of £2000. He continued to use it (with my knowledge)on the understanding he would pay it off. He stopped paying in January 2000 but has verbally agreed to pay half off at the time of divorce. Where do I stand? do I agree to the divorce and hope he keeps to his word or instruct a Solicitor at this stage? Finally my parents also helped clear a previous visa bill and car loan whilst we were married, can I insist he repays part or all of this money?
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| A. |
What you really need to do is ensure that when you and your husband divorce, that you deal with everything and there are no lose ends left between you. If you have no matrimonial assets and no children, then you may find it costs you more than its worth to try to force him to pay the half Visa bill. If there are other assets etc, then see a solicitor to make sure that concurrently with the divorce , any other outstanding matters are concluded too. |
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Date: 10 May 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Can you give general advice as to capital settlements? At the moment, the offer on the table seems to be a 60/40 split. (I'm not convinced we have all info relating to hubby!) We have two children of 8 and nearly 13 living with me and hardly seeing father.
A 60/40 split in favour of the wife with children seems fairly common. I have in the course of the marriage, invested substanially in our family homes, money received from an inheritance and money received from a redundancy payment. Both sums in their entirety went to purchase our property at the time, and in the case of the redundancy, it went in it's entirety to purchase the family home which children and I still live in. No monies towards it's purchase were contributed by my Husband.
My question is this, if 60/40 is a common split for wife with children (he earns in excess of £35000, I'm a student) is there any point in trying for a bigger split to take account of my previous contributions (and I also worked full time for most of the marriage)or is this just too difficult and costly an avenue to try? Otherwise, seems as if I might have ended up with the same kind of capital split without ever having contributed these fairly substantial sums of money.
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| A. |
Contributions can be taken into account by the Court. But bear in mind they will consider when those contributions were made. If they were very recent then it will be a factor. However the Court will also consider reasonable needs of the parties and if your reasonable needs are being met you may have difficulty in increasing the sum.
There is a downside to pursuing the case to trial if it is not agreed. It obviously takes longer and you are risk from costs if the Judge determines 60/40 was reasonable.
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Date: 10 May 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My partner is completely divorced - absolute issued 4 months ago. Financial settlement has not yet been reached. I have two questions 1)If we were to marry would my income and capital automatically be taken into account in his financial settlement. I have my own house with a mortgage (24 years to go!!)which I intend to keep, so capital would be very little. 2) If we marry but do not cohabit for some considerable time - due to my work in a different part of the country - how would that be viewed in any financial settlement between him and ex-wife? Thank you in anticipation.
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| A. |
If you were to marry then your house would become an asset of your marriage, ie, your Husband could potentially have an interest in it despite it being in your sole name. Therefore technically his wife could have a potential claim against it. However if the equity is little then it would not necessarily have an impact upon the finances as a whole.
Marriage is marriage if you chose not to cohabit then that is a matter for you. However the marriage lends the relationship some permanency, (some would hope) as opposed to a long distance relationship and I am sure that that permanency would be used by your partner’s ex-wife’s solicitors.
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Date: 10 May 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Having had an arranged marriage some 12 years ago I and my wife have had four children aged 2 to 9. I have tried to get my wife to learn English and to try and make her self independent, as much as possible, without any success. From my own efforts, holding three professional jobs, I have built up a portfolio of rental properties, including our marital home without any assistance from her, except looking after the children. She is now 26 I am 34. Please advise me as to her (1) entitlement to the assets, including the marital home, (2) will the Courts consider her lack of contribution to the assets, (3) Her inability to generate a reasonable income (when deciding the asset split), (4) What is the basis for the asset split?
Many thanks.
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| A. |
I am afraid that all assets of the marriage whether they be in sole or joint names are taken into account for Court purposes.
Case law (including recent judgements from the House of Lords) widely states that caring for children and bringing up the family is of equal status to the spouse who works.
The starting point for splitting assets is on an equal basis. The Court must then consider whether there are ‘special circumstances’ which exist which enables them to depart from that. Also they will consider the reasonable needs of each of the parties.
The factors the Court take into account when considering asset splits are set out in section 25 of the Matrimonial Causes Act.
I cannot advise you what your wife is likely to get I would strongly urge you to use a solicitor to get initial advice on matters taking with you all documentary evidence of your assets.
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Date: 6 May 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
Hello I wonder if you can help me ?
My husband has two residential care homes and before both businesses were set up I signed "papers"together with my husband. He used tell people I was a partner in both businesses but now he informs me he is the sole proprietor. My question is how can I investigate to find out if I indeed have any share in either business ? Thank you for your help
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| A. |
You do not say if the residential homes are a limited company or a partnership or in fact some other corporate identity.
If the residential homes are a limited company then a search at companies house will reveal who are the directors etc.. Such a search can be undertaken personally or through companies who specialise in such matters. If you telephone companies house (there is one in Cardiff) they will be able to assist you.
If the residential homes are not run/owned by a limited company then you may need to consult a solicitor to make enquiries on your behalf. If you are in fact divorcing a specific application can be made to obtain the necessary disclosure if your husban will not give this voluntarily. |
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Date: 3 May 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
My partner has been divorced for 4 years now. He was married for 4 years and they have 2 children. He agreed in the order to pay £2k per month to his ex-wife and the children until she gets married again. He left her the matrimonial home and is very much in debt now. He says that he was feeling so guilty at the time that he would have agreed to anything. His lawyer did not advise him very well either.
Although his earnings are in the region of £90k per annum, we are now finding it difficult as we are getting a joint mortgage.
My question is whether there is any way he would be able to reduce these payments (the portion going to his ex-wife) or at least not have to pay so much until she gets married again, which for obvious reasons she will not do. She will start to work again soon and is also buying a bigger house.
Thank you for any advice you can give.
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| A. |
I am afraid on the information given I cannot provide an accurate response.
It is possible to go back to court to ask for a variation of a maintenance order for periodical payments to a spouse. However your partner should seek legal advice from a specialist solicitor before making such an application. He would need to show the solicitor details of his income and outgoings now together with any papers he has from the time of the divorce.
You do not give details specifically as to how your partners circumstances have changed since the original order or how, if at all, his former wife's circumstances have changed. Both of these things are relevant. Certainly if your partners former wife is returning to work this could certainly have a bearing.
If you partner was not happy with his previous solicitor then he should consult another solicitor who specialises in family work.
For more specific advice please feel free to use our LegalAssist service to obtain a free consultation with a local Solicitor |
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Date: 29 Apr 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been married for 14 years. I am 34 and my husband is 36. We have twin boys aged 5 years. In Feb 1999 I moved inot the spare room as my husband wouldn't and in August 1999 I moved out of the house with the children after we decide to have a 6 month break. As we had equity in the house my husband raised the extra on the mortgage and gave me 50% of the equity to use as a deposit on another house. The new nortgage on the old house was taken out in his name and I transferred the old mortgage onto the new house in my name. Time passed and my husband now has a new partner and has asked for a divorce. I then went to seek legal advise. All the way along my solicitore has been telling me that the assets are valued at the time of the divorce. My husband has been to see a barrister and is claiming that everything was settled when I moved out in August 1999. I have now also had to see a barrister who has now said that he could have a case, even though I have constantly voiced my concern with my solicitor about having received monies already. Now they are saying that as I had received money the clock could be stopped in August 1999. If I continue to fight this I could be liable for my husbands court fees. I don't understand that he is living in a house worth 240,000 with equity of 120,000 and I am living in a house worth 130,000 and equity of 60,000. The two children are with me and he pays 240 a month for them and that is all the financial help I get. I work part time and claim Woprking Families Tax Credit. I don't understand why my solicitor would have told me for the past year and a bit that the assets are valued at the time of divorce and now it seems that my husband could have a case. Why is this?? It doesn't seem fair that he is 25,000 a year full time and has a partner also earning full time a good salary and is living in our home, as he wouldn't budge I had to go. The difference between stopping the clock in Aug 1999 and now in 2001 is about 40,000. Also surely I would be entitled to more than just 50% of the equity of the house as I am now trying to bring up two small boys on my own. What is the law or does it change to suit the circumstances. I don't want to go on and on paying soliciotrs fees if I am not entitled to any more.
Please help a very concerned,depressed ,stressed, and worried sick about the future. Many Thanks indeed if you can help
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| A. |
Your Solicitor is correct to an extent that the Court will look at the assets at the time of the divorce. However the court also has discretion to take other matters into account such as need and contribution. His Barrister is likely to argue that the fact the assets were separated at separation, should be taken into account and any increase in your Husbands assets should not be applied as there was no financial relationship between you and you have not contributed to the increase in the value of those assets.
You may have a claim for maintenance for yourself to make the income position a little fairer.
However the fact that only the house and no other assets were dealt with would support the contention that this was not meant to be a final settlement.
If you are unhappy with the advice given by your Solicitor, you can either seek a second oppinion or ask your Solicitor to obtain your own Barristers advice. this is likely to cost about £200.00 or thereabouts. |
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Date: 29 Apr 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Firstly, thank you for answering my query. It was very useful.
I hope that you can help with this. My parents who are 61 (mum) and 60 (dad) and have been divorced for 6 years (in September 2001). However, my father refuses to split or sell their properties (they have 2 houses one in the UK and one in St Vincent), savings and investments. At the moment my mother is living with my father and is afraid to push it with a solicitor, as he probably would make life very difficult for her, as he has historically done. We are 4 (children) and she is welcome to live with any of us, but she feels that she should not leave the house. We are all anxious because her health is not good and this puts pressure on her. She worked full-time and then part-time until she had to stop due to ill health.
Would you please let me know what steps she needs to take to get this situation resolved.
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| A. |
I am afraid that your mother only has one option if your father will not deal with the finances in a sensible manner and that is to employ a Solicitor to apply for Ancillary Relief (financial orders). The procedure is now very strict and fast, so he will not be able to stall, delay or be stupid about the matter unless he wishes to face sever penalties.
Leaving the house will not affect her claims in any way and she may then be free from his behaviour and be able to deal with the matter on a more positive footing. |
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Date: 18 Apr 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
When looking at the 'property' section, its all about houses, but my problem is about personal belongings. Where do I look?, please assist as my husband has spent most of our married life building a personal collection of musical instruments of high value, while steadfastly refusing to buy anything decent for the house. i.e. every item of furniture was 2nd hand, some very much so! There are no problems with children, our youngest (aged 20) is now set up in her own home with a partner, and I have left him in the matromonial home alone. His guitars and banjos could more than cover the value of half the equity we have in the house, do I have the right to insist he sells to pay me a settlement figure.? Please help.
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| A. |
Personal property or "Chattels" are dealt with within the ancilliary relief (financial) claim that is filed after you issue the divorce.
All the assets that you have accrued as a married couple will be taken into account including the value of his collections.
You really need to see a Solicitor as soon as possible. |
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Date: 11 Apr 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
My wife and I are separating after nearly 3 years of marriage, it is amicable at the moment, she has moved into rented accommodation. There is no mention of divorce yet.
Our house is in joint names worth £350k with a £220k mortgage (repayment & endowment).
We both work full time and have good jobs with myself earning 2-3 times her salary. I have always paid the mortgage and any large purchases, car, holidays etc. I accumulated savings of about £40k (some from when before we were married)
She has paid council tax & utility bills. She has real no savings, spending her money mainly on clothes, shoes, jewellery etc.
We have separate bank accounts and one joint savings account, which we don’t really use.
1). For the short time we have been married is she entitled to a 50/50 split or will it be 'what you’ve put in is what you’ll get out’? I am worried about my savings and the amount I have contributed to the house compared to her.
2) She does not want to sell the house as she is planning to move abroad shortly (could be permanent). She says I can stay in the house and sell it when I want too (it needs a lot of work) and then she will want a share of the equity. This could be several years away, as she will not be contributing whatsoever during this
Time, is there anything I should be worried about? It is in joint names.
3) Her parents are in there 60's & 70's in poor health and are multi millionaires. I know she is the joint beneficiary to the entire estate. Will this have any bearing on a divorce/separation settlement?
4) Does a financial settlement only take into consideration the finances during the marriage or also the period before when we lived together?
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| A. |
1) The court in deciding any financial issues has to take account of a variety of factors. In your case they will take account of the length of your marriage and the contributions you have both made. However they will also look at the reasonable needs of both parties. You have obviously only given limited information, but if you were to divorce now I think it is unlikely that the court would order a 50/50 split of all assets.
2) The court will in divorce proceedings consider the value of assets at that time, although will also look at the assets at the date of separation. To prevent there being any issues over the house and its possible increased value after any renovations it would probably be prudent to resolve the divorce, or at least financial matters sooner rather than later.
3) Inheritance can be taken into account, however this will depend on whether it is likely to be received in the near future. Obviously if the inheritance is expected shortly then it would be relevant within the proceedings.
4) The court will generally only look at finances during the marriage though can look at past periods in certain circumstances.
You seem to have a lot of issues and although I have been able to deal with these on a general basis I would advise that you see a specialist family solicitor.
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Date: 11 Apr 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I lived with my partner for 11 years before we married in 1997.I left him in 2000 and am currently divorcing him for unreasonable behaviour. I have also met someone else and am now living abroad.
We have lived in two houses, both of which were in joint names (the current one still is). We used 9,000 pounds from the sale of the first house as a deposit for the existing one which was purchased at 31,0000. A recent estate agents valuation was 43,000. I paid the mortgage and endowments continually throughout the relationship (my partner paid some bills etc but many standing orders were on my bank account - he contributed less than 50% to the household).
The property endowments are worth 11,000, the house equity approximately 12,000 plus we have 12,000 invested (my husband considers this to be his money as it was from an inheritence but the investment is in joint names). At the time of our seperation I had a loan (my name only) for 7,000, my husband had 2,000 to pay off a loan (his name only) and I had an overdraft of 500 pounds. These debts had been incurred jointly ie day to day running/living expenses,wedding loans/house improvements. I have also continued to pay a loan for electrical equipment which remains in the house (taken out in my name only) which i was unable to remove as my husband smashed up the house and had the locks changed. He "took over possession of the property" (I have a letter written to me confirming this!!) The outstanding loan is approx 800 pounds - i have continued to make payments as i was threatened with county court action.
When I left the marital home I continued to pay half towards the mortgage and all of the endowment payments for 6 months ie approx 1,200 pounds.
My annual income was 17,500 (i am now no longer working and am being supported by my new partner)my husband earns approx 14,000. My husband is 42 - I am 36 years of age.
My solicitor has tried to negotiate a financial settlement since last sept with little success. I am prepared to accept 8,000 providing he pays the outstanding loan off and takes my name off the mortgage. My solicitor has advised me that i am entitled to more ie up to 50% - I estimate this to be in the region of 28-30,000 given the previous figures and would appreciate your comments on this.
If necessary I will apply to the court for a 50% settlement. Will the amounts I have paid for the mortgage interest/endowments/loan payments be taken into account?
If my husband refuses to take my name off the mortgate where do I stand? Can I apply for this myself? He is unlikely to be co-operative with the lender regarding his own financial details.
As I am now living abroad, if he goes into mortgage arrears how will a county court judgement affect me abroad (I am assuming they will not be able to trace me here!)Will the mortgage lender or loan company be able to make county court judgements against addresses I have live in in the UK but stayed for only a short period of time (I notified them of a change of address or can they only apply for a county court judgement against the property i initially lived in when the debt was incurrred?? When I first left home I used my mothers address as a contact address for the mortgage (I did not live there) - will they be able to make a county court judgement against her address? What does this all mean?
If we reach a financial settlemnt and this is paid, where do I stand if my husband dies for instance and my name is still on the mortgage - what am i entitled to if anything?
Many thanks
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| A. |
You have a solicitor acting for you who is going to far more familiar with the case than I am.
However it would seem to me that there is enough money here for both of you to adequately provided for. It would seem that you have attempted to settle matters amicably for some time so now it would probably be appropriate for you to apply to the Court to sort matters out.
The new ancillary relief procedure is very good. It does not preclude you from settling the case once proceedings have been issued in fact it actively promotes it. However what it does is impose a timetable upon the case which means that at least you can see an end to the dispute.
I have to say that I make the figures slightly different from yours but in any event if you can show that the debts you have in your sole name were for a joint benefit then they will be taken into account by the Court.
Payments you have made to the mortgage and endowments will also be noted by the Court. However even if you have not paid your Husband has the full benefit of the house and therefore technically it could be argued he owes you what is known as an occupational rent – a sum equivalent to your share of the mortgage.
You cannot apply to your lender to take your name of the mortgage but the Court can order that the property be sold if your husband cannot do this within an allotted time.
I am not an expert on County Court judgements but one would assume that the debt would probably be registered against the former matrimonial home if the mortgage is secured thereon.
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Date: 11 Apr 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
The background to my questions is as follows:
My Wife I have been married 12 years and have 2 children aged 9 & 4. We are both in employment with good secure occupations, with her working part time (37 hours per week) and myself full time.
My wife decided our marriage was in trouble some 18 months ago when I returned home from working abroad and asked me to move out of the matrimonial home, which I duly did. She stated at the time this would be the best way for us to work out our differences and effect our reconciliation. Our differences where caused by my mismanagement of our financial affairs and getting us into debt without her knowledge, this has now been satisfactorily resolved. However, despite a concerted effort on my part including us seeing a Relate councillor which resulted in her refusing to go again after the first session. She has now decided to divorce me on the grounds of separation. In fact, she is now claiming the marriage was over in May 1999 when I went to work abroad. This is contrary to what she was leading me to believe and I was still taking her out etc up until recently, but we have not had intercourse, though we have shared the same bed occasionally. Throughout this period I have continued to pay all the bills including the mortgage, until recently when she took over responsibility for the utility bills and insurance for her own car.
My questions are as follows:
1. I received a letter from her solicitor in September 2000 asking me to sign over the house into her name, which I refused. Have I affected my claim to a share of the property by moving out? I have remained in close contact with our children and have stayed on average in the house up to 16 nights per month, often looking after them when she is working. Should I think about moving back in again which she is strongly opposed to, but can she stop me moving back in if I wanted to?
2. She wants to claim two thirds of the property and half my pension plus maintenance. This seems unfair considering her earnings are equal and have the potential to exceed mine with overtime. In addition she claims Family Tax Credit/Child allowance, plus she has her own pension scheme. What is my position here?
3. As I don’t want this divorce what are my options as I dispute we have been separated 2 years this May when she wants to start proceedings. Basically she states her reasons for not wanting reconciliation are that she is no longer in love with me and wants her independence. However, I am suspicious of her reasons as last June she has struck up a close relationship with a former work colleague. However if I do not agree, she is threatening to use unreasonable behaviour as grounds because of my previous financial difficulties and will then want to claim her costs from me. Can she do this? Is there any point in fighting her or will it just cost a lot of money and I will still end up divorced?
4. She has a solicitor and has been granted legal aid. I would struggle to pay the fees for a solicitor with the amounts I am currently paying her. Why does she qualify for legal aid when it appears I would not?
5. Is she liable for any of my debts, this money was spent on household living expenses and never solely on myself albeit without her knowledge? I have also discovered she opened an ISA account about 20 months ago and has been regularly paying in large sums without my knowledge. Am I entitled to make a claim on this money?
I realise I have asked a lot of questions, I have tried to present the facts as I see them. If you have the time I would be really grateful for an answer.
Thanking you in anticipation.
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| A. |
1. You were quite right not to sign over the house to her. All assets have to be considered and not each one separately. The issue of the house needs to be considered in relation to the matter overall. You have not prejudiced your rights in relation to the house by moving out. Its probably not a good idea to move in again at this stage as it will cause so much conflict.
2.as I said all assets have to be considered as do a number of other factors such as your ages, length of marriage etc You really do need to take legal advice on this and the sooner you do that the better as it is fairly complicated and each case is different and is decided on its own facts.
3.If you haven't been separated for two years, she can't divorce you on a two year separation. You need not co-operate on that but then she can divorce you on unreasonable behaviour and she will succeed on that. there is no point in defending a divorce but its important to be aware of the fact that if you are sued divorce, you will not be penalised financially - it merely facilitates a divorce.
4.It will be hard to fund a divorce but remember that legal aid is a loan that she will have to pay back to the legal board.
5.You could have a claim on the ISA - you need to check that she has disclosed this to the legal aid board. In theory everything goes into the one pot and is then divided.
You should consult a lawyer though who will be able to advise more fully with all the information to hand.
For more specific advice please feel free to use our LegalAssist service to obtain a free consultation with a local Solicitor |
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Date: 11 Apr 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My decree absolute was granted in September 2000 but I still haven't managed to secure a financial settlement. My husband is living in the marital home with my 2 teenage sons and all investments/accounts are in his name. He earns a good salary and has an extravagent lifestyle. I am in rental accommodation, on low income and on housing benefit. 6 months of family mediation have come to nothing because of the balance of power in his favour. He asked me to go to private solicitor-led mediation and after one session he's still unhappy about what he has to concede to. He's reluctant to go through the courts because of cost implications. I just want to get this whole thing settled so that I can recommence my life. What can I do to get him to settle?
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| A. |
You can't force someone to settle if they don't want to. The only way in which to guarantee finality is to go through the court system. The sooner you start that the better. |
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Date: 10 Apr 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
i have been married to my husband for 7 years but have been together for 10 years. We have currently separated amicably in August after myself having an affair.
I currently pay for everything in the house we both lived in and have agreed to buy my husband out in exchange for selling the extra endownment policies we had and I am to transfer the mortgage into sole name of myself and re-take out another mortgage in my name only.
Can this be done on working Families Tax Credit. I have paid for everything up to now and have proof of this.
Also he pays maintenance and has joint custody over our child will the divorce be quick as we are very amicable about everything.?
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| A. |
I am not sure from your question whether you have grounds for divorce. There is only one ground for divorce in England and Wales and that is irretrievable breakdown of the marriage, proved using one of five facts;
Adultery, unreasonable behaviour, two year separation by consent two year desertion or five years separation.
If you have grounds and the divorce is amicable then it can usually proceed within 3 to 4 months, provided both of you deal with the paperwork as quickly as possible.
So far as the transfer of the property you propose is concerned, I am afraid I cannot tell you the answer. You will need to approach your current lender to ascertain if they are prepared to transfer the mortgage to you or if not perhaps go and see a financial advisor who can look to see if other lenders would be prepared to take on the matter.
On the ‘custody’ issue. Bear in mind that the Court will not intervene in this matter as long as you and your Husband are in agreement over any arrangements.
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Date: 9 Apr 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Hi,
My husband is on remand for having attacked me. Psychiatric reports are pending and the situation is further complicated with him having MS
When we finally sort out the finances, will everything have to be split down the middle ? We have a daughter at university and would find it impossible to support her on my wages even if I was entitled to half of his pension .
Would I be able to claim for her accommodation and tuition fees ?
Thank you
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| A. |
I cannot advise as to what settlement is likely to be reached or order made. Basically the principles of settlement are on the basis of an equal split, unless, as recent case law states, there are special circumstances whereby one person should receive more than half.
However the Court failed to give guidelines as to what constitutes ‘special circumstances’. It would seem however in practice that this could mean where one person is housing children of the family or perhaps in your case supporting children of the family.
You can apply in the petition for a lump sum for a child of the family, but it is not clear from the question whether there is capital available. If there is sometimes the Court will settle a lump sum for the benefit of a child and as this is for her education then it would be appropriate.
I would advise you to get advice from a local citizens advice bureau or solicitor.
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Date: 8 Apr 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband and I have were married in 1990 and separated amicably in 1999 (no children). Our relationship had broken down and he does not want children. I left the marital home and stayed with friends and family for about 18 months (I could not afford to rent at the time). He initially agreed to sell the house, but changed is mind and then decided to buy me out. I have now been living in my own flat for about 6 months. We did not take out a "legal separation" agreement. My husband also agreed to pay me a settlement of about £10k. We keep receiving conflicting information from our solicitors, i.e. I was told that after 2 years if we were separated and in agreement we could be divorced. He was told that we had to be separated legally and this could only be done through a solicitor; we had agreed everything between us i.e. the selling of the house, and a settlement for me (our earnings are 2:1 in his favour and I have always paid my equal share for everything. Which basically means my husband has been able to buy shares and ISA, take expensive holidays, save money, etc., where I have not) of about £10k. However, his solicitor has advised him against giving me a settlement and wants us to go to court. My husband has asked me to send him an email confirming everything my solicitor has told me. However, I would like to confirm what I have been told, but do not want to go to my solicitor again at this point. Therefore, please confirm/advise: (1) that we do not need a legal agreement if we are in agreement; (2) can we draw up an agreement between ourselves stating that that £xk will be the only payment and that neither of us will have any financial obligation to the other in the future, and have it made legally binding by a solicitor? (would that be advisable?); (3) assuming that we proceed in agreement which pack would be best for us to use, Standard or Premier? - I could not access the demo to take a look - (4) please try to give me a rough estimate of how much it would cost should I need to “force” him to give me a financial settlement?
Thank you.
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| A. |
You do not need to have a separation agreement to obtain a 2 year separation divorce. The date of separation is dealt with in an affidavit (sworn statement) which is filed when you apply for Decree Nisi (1st Decree).
As for the financial aspects of the divorce, you do not need a separation agreement if you are going to issue the divorce fairly soon.
At Decree Nisi stage, you can obtain what is known as a consent order. This sets out what you have agreed, when it will be implimented and also dismisses all other claims that can be made. This is commonly called a "clean break".
A Solicitor will draw this up, at Decree Nisi and once granted by the court that is the end of the matter unless you need to enforce any matters ordered.
The Premium Pac will deal with the divorce for you, and contains everything you need to proceed, including completed documentation, letters, the guide to procedure and free help and assistance until you are divorced.
The court fees for the divorce are £180.00
It will be difficult to estimate fees for a contested financial application, but you could be looking at £1500-£5,000 for a complete application including court hearings. |
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Date: 6 Apr 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have not seen my husband for five years. I believe that he is being held in a Middle East prison, though the counsular division in London have made enquiries and tell me he is not there. He calls occasionally from a pay phone but is very vague. He has not sent any money for eighteen months, prior to that he sent a little spasmodically.
I have paid the mortgage for the past six years, when he was responsible the account was seriously in arrears.
How do I go about taking his name off the title deed and mortgage and obtain a divorce without being able to serve papers?
Thank you in anticipation
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| A. |
I am afraid that you are going to have great difficulty in this matter because of your lack of knowledge as to his whereabouts. The divorce may be simpler than the finances although you will have to show the court you have done your utmost to have him made aware of the papers. Does he have parents in the UK he keeps in touch with that can be served with the papers? You would then be able to argue they will have come to his attention. However, you will need his agreement in relation to the house or a court order and I can only suggest you get legal advice straight away. |
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Date: 6 Apr 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
OUR OWN SON AND I LIVE WITH MY DIVORCED PARTNER, A SON BY HER EX AGED 8 AGED 17 MONTHS. SHE HAS LIVED IN THE HOUSE FOR 11 YEARS AND DIVORCED HER HUSBAND SIX YEARS AGO AFTER HE DESERTED THE FAMILY HOME 8 YEARS AGO. HE HAS NOT PAID THE MORTGAGE OR KEPT UP REGULAR MAINTANACE FOR THE CHILD.HE IS CURRENTLY IN ARREARS OF £1,700 AND HAS NO INTENTION OF PAYING, HE HAS JUST STARTED CONTRIBUTING THROUGH AN ATTACHMENT TO HIS EARNINGS OF £50 PER WEEK. WE HAVE HAD HIS PERMISSION TO PUT THE HOUSE ON THE MARKET AND HAVE BEEN FORTUNATE TO SELL THE PROPERTY, WHICH WOULD LEAVE US WITH EQUITY OF AROUND £11,000 AND AN ENDOWMENT WITH A SURRENDER VALUE OF £7,000. CONSIDERING THAT I HAVE PAID THE MORTGAGE FOR THE PAST FOUR YEARS AND MAINTAINED MY PARTNER AND THE TWO CHILDREN WE OFFERED TO PAY HER EX £1,000 (EQUAL TO HIS HALF OF THE ORIGINAL DEPOSIT OF £2,000) FROM THE PROCEEDS OF THE SALE, IF HE AGREED TO SIGN THE PAPERS. HE AGREED TO THIS BUT WUT WHEN IT CAME TO SIGNING THE PAPERS HE REFUSED AND SAID HE BELIEVED HE WAS ENTITLED TO A HALF OF THE PROCEEDS AND HALF THE ENDOWMENT AND WOULD NOT SIGN ANYTHING. WE BELIEVE THAT HE IS NOT ENTITLED TO ANYTHING BEARING IN MIND THE MONEY HE OWES US AND ALSO THE FACT THAT WE HAVE SPENT MONEY IMPROVING THE PROPERTY TO ITS PRESENT STANDARD. THE OFFER OF £1,000 WAS AS A SWEETNER SO HE DIDNT DRAG THINGS OUT. WE ARE IN A POSITION WHERE WE MAY NOW LOSE THE SALE OF THE HOUSE AND ALSO THE HOUSE WE INTEND PUCHASING PLUS THE MONEY WE HAVE ALREADY SPENT ON SURVEY ECT. I KNOW THE COURTS WOULD NORMALLY DECIDE WHAT PERCENTAGE HE WAS ENTITLED TO BUT WE WILL NOT HAVE ENOUGH TIME TO GO THROUGH THIS PROCEDURE. DO YOU THINK THE COURT WOULD CONSIDER OUR OFFER REASONABLE? ALSO IS THERE A WAY WE CAN ENFORCE HIM TO SIGN IF HE JUST REFUSES ANYWAY.
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| A. |
There is no way in which you can force someone to agree to anything against their will. If he won't agree, the only option you have is to proceed through the courts although a lawyers letter first needs to be sent. In a way this is a lesson to anyone who divorces and leaves financial matters in limbo. Until the assets have been properly divided, in theory they all remain up for grabs. If he is a co-owner, he is a co-owner unless something is agreed or the court orders to the contrary. You will in all probability have to offer him more than the £1,000. The fact that you have paid etc for so many years won't carry a whole lot of weight because in a way you both allowed the status quo to continue. I know this sounds harsh but really the lesson to be learned in this type of situation is that if one is certain that the marriage is over and there will be a divorce, then deal with the finances then as well. I think your girlfriend needs to see a lawyer who can hopefully help negotiate an agreement that will enable you to proceed with the sale and purchase. If not, don't let it lie. Now is the time to sort it out so that you can sell and move on. Good luck and I hope it works out |
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Date: 5 Apr 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My son's wife left him recently taking the 2 children aged 3 and 8.She has gone into rented accomodation and petitioned for divorce on the grounds of unreasonable behavior-suspicion of her adultery etc.My son has cross petitioned also on grounds of unreasonable behaviour.The CSA Is now involved,the house is in joint names and my son has a Visa card debt of approx £15000 and is the major card holder.My son wants to sell the house and pay off the debts and mortgage so he can afford to pay maintenance and have a reasonable living himself.His wife will not agree to sell the home.As the divorce is proceeding can my son get some sort of court order to enable him to sell the home.Also as the Visa debt is partly due to his wife's spending is she responsible when the finances are finally sorted ? Thank you very much for any help
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| A. |
The court will look at all the circumstances of the case.
They will only allow the house to be sold if it would still allow his wife and child to find alternative satisfactory accommodation.
If it can be shown that she would be able to afford to buy a new house with the equity left after the debts and mortgage and conveyancing fees had been paid and that she can raise a mortgage, then I can see no reason why not.
If she is not working, then I cannot see why the court would make an order for sale at this stage as she and the child would be homeless, unless she had secured rented housing from the council or Housing Association etc.
Your son needs to see a Solicitor as quickly as possible to get more detailed advice on his particular situation.
Have him gather together all his and her financial details for the Solicitor which will save time and therefore money.
For more specific advice please feel free to use our LegalAssist service to obtain a free consultation with a local Solicitor |
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Date: 5 Apr 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
A close friend left his wife in June 2000 after she had stabbed him and burnt his clothes and bed linen. HIs salary was paid in to their joint account and she continued to draw out ALL his money to pay family bills and for her own personal spending, leaving him with no money or clothes - he had to borrow both from friends.
Once he closed the joint account in August he gave her over £200.00 maintenance money each month, filed her car with petrol every week, and gave his 13 year old daughter £80.00 per month pocket money. He also gave her £200.00 for her birthday, bought her a £100.00 mobile phone and gave his wife £500.00 at Xmas to buy food and presents.
He has now had a CSA assessment which requires him to pay back maintenance from BEFORE he left the house??? I have checked with his bank statements and have discovered that the DSS had been paying the mortgage for 10 months before this date - I am therefore assuming that she had been claiming benefits fraudulently.
My questions now are what should he do to prove that he knew nothing about this, and how can he prove that he gave her all the money that he did as it was all in cach as the bank refuse to give him a cheque book as his and her credit rating is so bad.
Also, if and when the DSS claw back the mortgage money which should not have been paid, how willl he stand with the mortgage lender - her solicitor is trying to get him off the deeds, but they refuse becasue she cant afford to pay.
Last question, he is filling for divorce, what is your advice regarding what should go on the prayer re the finances? He would like to see the house sold to pay off all the debt that they are in, but she would not agree - any form of communication withe her is impossible, she is too violent.
Please, please can you help as he cant afford to pay a solicitor and pay the arrears to the CSA whilst they investigate - they have told him it could take months !
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| A. |
It is difficult to advise on the issue of the CSA payments. This case highlights the need for proper documentation of any payments made to estranged spouses. One would presume that he can show the CSA that his salary was paid into the joint account and that all bills were assumed to be paid from there.
I am not entirely sure whether the DSS will seek to claw back the money from him. If the claim was made by your friends wife then it is a matter for her that the same may have been done fraudulently. As long as he did not complete the forms then he cannot be prosecuted for any fraudulent claim. I think that you need to contact the help line for the Benefits Agency to get more specific advice on this point.
On the transfer of property issue I am afraid that this is a common problem encountered in matrimonial proceedings. Unfortunately the Courts are unlikely to order a sale where young children are to be housed and if the property sold there would not be sufficient equity to purchase alternative housing.
In respect of the divorce, leave the prayer as shown in the paperwork you have. This then leaves the option of all claims being available when any applications need to be made in the future. Bear in mind that the prayer in the petition is not the actual application being made, it is merely the framework for allowing an application or an order to be made at a later date.
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Date: 1 Apr 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
I am divorced from my husband but we have yet to resolve the division of house equity and an interest in my husbands business. The house equity is £18000 and the business has yet to be valued but has made profit in excess of £64000 (99/00). We were married in 94 and my husband left me in August 97. We had been living together since 91 and had our first child was born in Jan 92. Our second child was born in June 97. My ex-husband purchased the property in 91 and the mortgage was in his sole name. At the time of our separation he ceased paying the mortgage and I was in receipt of income support. When he did start paying again he only contributed 50% of the payment, the remainder was paid by DSS and once I began to work in Aug 1998 I paid my husband £100 contribution and allowed him to keep the CSA payment of £115.87 in order to meet the mortgage payments of approximately £265 per month. This continued until Nov 99 when he ceased paying any mortgage and allowed the debt to build up once more as he wanted to sell the house and realise the equity. He siezed the property in Jan 2000 and put it on the market, it subsequently sold in May 2000. I and the children went to live with my new partner rather than attempt to enter the family home and risk further confrontation, I allowed the house sale to proceed on the exchange of solicitors letters acknowledging that the equity would be held pending an agreed settlement.
I had contributed to the house expenses and decoration and improvement through out the period of living together and marriage and continued to meet the costs of repair/upkeep after his departure.
After the sale of the house my husband made a full and final settlement offer of £2500. I refused this offer and asked for half the equity and one third of his interest in the business partnership of my ex. He has decided to forego the services of his solicitor and apply to the court for the financial matters to be settled. He argues that he made all mortgage payments, house was in his name and he bought the house before I went to live with him. He also cliams that the business hass nothing to do with me. However, the business only exists because my father financed the set-up of the company, and employed my husband as a manager along with one other employee. My father, mother and I spent many weeks organising and setting up the enterprise as well as sorting out the financial aspects. My father sold his interest in the business to my husband and his business partner in late 97 at original set up cost value only in order to leave my ex with the opportunity to provide adequate care for his two children. The estate agency business has prospered and my ex has been able to set up a second shop but he has done no more than pay me the minimum CSA assessment of &115.87per month. He has delayed returning his CSA re-assessment forms by 12 mths, he has failed to provide for his children by way of clothes, shoes, etc. He has the children to stay every other weekend. He has been living with his partner since 98 in a house that was originally rented but which he has subsequently bought. I have lived with my children in my new partners house since Jan 2000. I have never received any personal maintenance from my ex, my career has been put on-hold by having to look after our two young children now aged 9 & 3, I have very limited pension provision and I am currently studying part-time to gain new qualifications whilst he has been able to build his business without the burden of parental responsibility, financial or emotional. My new partner has been and is currently supporting myself and the children until the youngest is school age and I can seek employment.
My solicitor has only recently notified me that his hourly rates are £110 (plus other charges levied on letters, etc), he is also unwilling to give me any idea of what I am likely to be awarded and I am confused as to whether I would be better off asking for a final out-of-court settlement of £10000 rather than risk going to court, being awarded a sum that barely meets my legal fees and maybe having to pay my ex's fees as well. I need some advice on what the likely outcome would be based on previous case histories and whether my current solicitor is charging a reasonable rate for what appears to be little information and support. The financial statement that I spent an hour with him in his office drawing up in Dec 2000 has just come back full of errors and omissions and I am due to appear for the first hearing in May 2001. I need to return the papers in the next 2 days and need some urgent advice. There were no other financial assets or monies that existed as when my ex-husband left we had no savings and only debts.
Any help or advice you can offer will be much appreciated. Thank you
Claire
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| A. |
I am very sorry to hear of your current difficulties and there certainly seem to be alot of issues in your case which with the level of information you have provided I am afraid I am unable to deal with accurately.
You certainly need a solicitor, and one who specialises in family law. Any solicitor is obliged at the outset of your case to provide information as to his or her hourly charges and give an indication of the likely totally costs of the case. In addition the solicitor must also give information as to the complaints procedure within the firm.
If you have no faith in your solicitor and feel that the service you have received is unsatisfactory then I would suggest that you either advise your solicitor you wish to make a complaint and ask for details of the complaints procedure or you contact another solicitor to deal with your case and to deal with your complaint against the solicitor.
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Date: 29 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My husband is divorcing me on the grounds of unreasonable behaviour. The forms have been completed and lodged with the court.
He wants a financial settlement from me of £40,000 cash, also computer and gym equipment purchase value of £6,000 and the car current value of £5,000.
The goods and car I consider to be fair. However, I am in dispute with him over the cash settlement.
We have been married for 4yrs and 7 months,and have a son aged 3yrs 9 months.
My husbands details are:-
a. Income approx £15,000 pa presently, for the first 2 years it was approx half this.
b. He is presently studying for a IT qualification and has a potential earning of £80,000pa (his estimate).
c. His income has mainly been spent on himself i.e. hobbies, retraining, social activities.
d. His contribution to household expenses during the whole of our marriage is £4,000 only.
e. He has no savings now or when I met him.
f. In Feb 1995 he declared himself bankrupt.
My details are:-
a. My income is £22,000 pa earned from two properties which i rent out. The one property was a gift to me from my ex partner. The second property was purchased with my own savings and money gifted to me by my ex partner.
b. The property in which we live was gifted to me by my ex partner.
c. I have liquid assets of £160,000.
d. I will be paying for my sons private education and car myself and I will not be making a claim for maintainence.
He has been pressurising me for the cash settlement so that he can move out. I would like to settle this matter out of court if at all possible. Are there any guidlines you can give me as £40,000 seems excessive to me bearing in mind that he has made only made a £4,000 contribution to the household expenses.
Thank you for your time and i look forward to hearing from you.
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| A. |
You really do need to see a solicitor about this as there is a lot at stake for you. You need to make sure that your assets are protected as much as possible particularly because you have the main responsibility for your child. You will have to pay your husband something despite his nominal contribution to the marriage and once you have sat down with a solicitor and gone through it all carefully, you can work out what figure to offer him. Do not be pressurised into agreeing to anything with taking legal advice first. |
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Date: 28 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I am scheduled for final hearing on the 9th April 2001. However I have been requesting evidence to support a contribution schedule from my ex-wife's solicitors for over 6 weeks now. They have acknowledged that they will send it but I feel this is fundamental to my preparations for final hearing. I want to request an adjournment to the hearing on these grounds but the other side have said they will oppose any such application. An adjournment has already been made back in January 2001 when the other side failed to comply with directions made at initial hearing. I don't know what to do because if I fail in my application there will be no time to prepare a case for final hearing. Please help !
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| A. |
You could have issued another application but time is running short. Chase them for what you need otherwise you need to raise it when you go to court |
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Date: 28 Mar 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
After a failed appeal The court has ordered that my wife take all of the equity from the matrimonial home (£80,000) and purchase a property to the value of £230,000 supported by a mortgage of £154,000. My ex wife has a buyer for the FMH and applied for the mortgage. She was turned down as her income (even with £1900pcm maintenence from me) was not sufficient. The mortgage company will only grant her a mortgage if I stand as guarantor or we take out a joint mortgage. I am not happy to do either of these as it would prevent me from obtaining a mortgage if I wished to purchase a house for my son and I. Additionally I have been made redundant recently and have no income, therefore I could not gain a mortgage anyway. My question is, can the court order me to be a guarantor or joint mortgage holder? Now that I am unemployed and unable to fund the mortgage on the FMH (I left the FMH in December 1998 and have kept up the mortgage payments). Is there any way that I can force her to accept the offer on the FMH which she has accepted prior to my redundancy?
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| A. |
If a final order was made then the Court cannot order you to stand as guarantor to the mortgage or to apply for a mortgage with her.
In any event if you have been made redundant you are not likely to be approved for such an application.
If the Court has ordered that the property is to be sold, giving her the net proceeds and thus releasing you from the existing mortgage then you could apply to the Court for the sale to take place if you can show that she is not accepting a reasonable offer.
Without knowing the exact terms of the order I cannot say exactly what could happen.
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Date: 27 Mar 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I split from my wife 17 months ago and divorced her in December 2000 due to her unreasonable behaviour.
We were married for 17 years and have 2 children, one 17-year-old boy who is at work and a 12-year-old girl who is still at school.
I contacted a solicitor when we split and I do not feel that I have been given good service as a paying client. I have had 4 different solicitors assigned to my case so they have had to back peddle and start at the beginning every time. They have constantly sent me correspondence late or not at all. I feel I have given them £2000 for replying to a few letters.
My ex-wife and her solicitor are taking me to court to claim maintenance, expenses, lump sum etc next week.
I am not going to be represented because I cannot afford the £5000 for 2 appearances unlike my ex who has an open chequebook in the form of legal aid because she is on benefit.
My ex has her own rented flat and lives with my daughter. I pay £580 per month through the CSA for my daughter’s upkeep.
I have a girlfriend who I have been with for around a year and we have lived together for the past 8 months. I contribute to the house in the form of rent, which includes all bills, but I also help out with the other household expenses. The house is not in my name and I had nothing to do with the purchase of it.
I take home approx £3300 per month but am left with very little after my child maintenance and my own expenses. When we split I took on all of the debts from the marriage including loans that my ex took out and I guaranteed the payments. The debts total over £20K which I pay back monthly.
I have a final salary pension that currently is valued at £126K.
I am not looking forward to representing myself in court, as I will be up against a professional that could potentially tie me in knots with legalities.
I need to know what I am going to be up against in court
How much will I have to pay my ex wife and for how long?
Will my current living arrangements with my girlfriend affect the outcome?
Will I have to pay a lump sum? (I have no means of raising money because of the debts)
There are no assets outside of my pension but my ex has asked for a £130K house and £1400 per month expenses on top of my CSA payments. I think this is totally unreasonable.
I would very much appreciate your answer ASAP as I am going to court next week.
Many Thanks in advance.
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| A. |
I am sorry that I am not going to be able to give you the exact advice that you want.
Sofaras maintenance is concerned, clearly the Courts have no jurisdiction to make any orders in respect of Children and therefore the CSA assessment will continue in force.
Spousal maintenance is a difference issue, however you have to be in a position really to put your wife in a better position than she would be on benefits. Without knowing the full picture I cannot say what the Court would order. However it is unlikely that you will only be left with only £1,300 per month particularly as you have taken on matrimonial debts.
In respect of the lump sum once again I cannot say. It is not clear whether there are any capital assets of the marriage save your pension. If not then what could be likely is a pension earmarking order. IE your wife gets a lump sum at a later date. This sort of order is likely in light of the length of marriage
If there was no capital to the marriage then the Court cannot compel you to take out a loan to pay your ex wife money. They can only work with the capital of the marriage. Furthermore, the fact that you have taken on debts will be considered by the Judge.
Acting on your own may seem quite daunting. However the District Judge will be sympathetic to your situation and will give you assistance when needed. He will not allow the solicitor or counsel to ride rough shod over you. In fact we as solicitors hate acting against litigants in person!!
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Date: 27 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I found out in October that my husband of 7 years has been having an affair since last May with a work colleague. We have a 18mth old son. On Jan 1st this year he moved in with her. We have joint debts which total £16k, but we have about £70k equity in our marital home. I have been the main breadwinner of the family since we married and earn three times his salary. He has basically buried his head and refuses to talk about our debts. As I have my own company I cannot afford to get CCJ's against me and he knows this. He is also saying that he is going to make me sell our home because he wants the equity in the house. I have made him an offer of £20k and even agreed to take over his half of the debt - which he has refused. He basically wants to sell our home. Can he do this? Can he make me sell our home. I want to start divorce proceedings and make my offer to him formally if he refuses my offer can he make me sell our family home to obtain any profits that are in the sale of our house.?
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| A. |
I really do think you should see a solicitor as soon as possible. Your husband can't make you sell the house against your wishes. Without having any real idea of the assets etc in your case, its difficult to say whether the £20,000 you have offered is fair and reasonable. You have to look at all the factors including the disparity in your incomes. If you want to issue divorce proceedings, then do so. You can then also issue proceedings to deal with the finances which will fix a timetable within which to work. If you are able to reach an agreement, then neither of you need go to court. If you don't then at least the matter will progress. Once you have both given what is known as financial disclosure, then put forward your offer and see where it goes from there. Good luck |
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Date: 22 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I left my wife just over a year ago after 8 years of marriage and am now living with another partner. During the marriage, my wife was seriously ill, and I had to care for her most of the time, which put massive stress on myself, and I had a minor breakdown. Just before I left, her health improved to the point where she was able to lead a normal life, without care from others. I left the matrimonial home, which has equity of approximately £40000. We had debts of about £34000, most of which are on credit cards in my name, with my wife as an additional cardholder, the rest as a loan from my father. Most of the debt was spent on improving our home, holidays and generally living beyond our means. I (and my new partner) are working, my wife does not have a job, but receives about £850 a month net from benefits etc, but I believe she is now well enough to work.
My wife is denying that any of the debt is her liability, and I do not have all the statements from the cards to show what the money was spent on, apart from a few receipts for improvements to the home. How can I prove that the debt was spent for the benefit of the marriage? Also, there are no children involved. Is my wife entitled to maintenance?
I understand that she is entitled to some of my pension, shares etc, and I don't mind this. Surely the equity in the house and the debts should be shared though?
I am currently employing a solicitor, but any advice would be appreciated.
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| A. |
I am pleased you have instructed a solicitor who will be able to advise you fully. You can get back copies of statements which you should do. If the debts were accumulated during the marriage for your joint benefit then in theory they are matrimonial debts. It doesnt sound as though there will be much equity left from the house after payment of debts.Depending on the circumstances, she may be entitled to some of your pension but your lawyer will be able to advise because he wil have all the relevant information. |
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Date: 14 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
Im not clued up re mortgages
I would ideally like to stay in house with my two children. We have endowment mortgate of 26.000 and repayment mortgate of 6.000 (home improvements) with 9 years left to go. House is worth around 56.000. Husband Paul wants around 15.000 from me as deposit for own property but I can afford current mortgate myself but certainly cant afford to take out another 15.000. As I earn more than him, (I earn 20K)he is not going to give me any maintanance (Im not pushing as it is me who wants him to leave)But how can I get around this 15.000 unless I sell the house that me and the children want to keep ?
I would really appreciate your advise as I am left doing nothing for fear of doing the wrong thing financially. thank you, Hilary
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| A. |
This is complicated and difficult to advise without having all information in relation to your joint finances. as you have children, it will be important to ensure that they are housed and if you need the capital for that, that would be of prime importance. Your husband is not automatically entitled to half the net equity and one doesnt look at assets in isolation but you need to look at matter as a whole. Do not agree to anything until you have had an opportunity of taking proper legal advice which I think you should do as soon as possible |
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Date: 13 Mar 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
Dear Sir/Madam
this is a question I'm asking on my sister's behalf (she is divorcing and her husband currently accesses her e-mail). She is currently attending mediation and is concerned about the level of credit card debt (some 56K) that currently exists. Her question relates to the level of responsibility. Is it shared? Is her husband solely liable?
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| A. |
You do not state whether the credit card or cards are in sole or joint names, or how the debt was run up.
If the debt was incurred jointly and for joint purposes, for example holidays, general day to day living then it is likely that the debt would be treated by the court as a joint debt.
If the debt was incurred solely by your sisters husband on items and services solely for his benefit, then your sister would have a strong argument that this debt should solely be the responsibility of her husband.
The credit card company will not really be interested in who ran up the debt. They will look to the person who is legally responsible for the debt. Therefore if your sister has the credit card in her sole name and the company had to issue proceedings to recover the money, then they would do so against your sister. If this is the case then your sister needs to get a court order whether by agreement or not, that her husband is responsible for all or part of the debt, if all or part of the debt is his responsibility. |
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Date: 12 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My wife and i separated almost 7 years ago and lost touch with each other. could she have divorced me without me knowing about it? We were both in the RAF and she has just left after 12 years service and i am still serving. I know not of her where abouts. Will she be entitled to part of my pension as she will have her own? Is it possible for a marriage to be nullified without divorce proceedings after such a long separation and if not how do i start? We were married in Cupar, Scotland. She also got a mortgage in her name shortly before we were married if this makes a difference as i did not ask for anything from her and she also kept all house contents which we bought between us.
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| A. |
It's unlikely that your wife would have divorced you without you knowing although it is possible. Until you are divorced and finances divided within the divorce proceedings, everything including pensions are up for grabs. You need to find out where your wife is and ascertain if she has divorced you. If she hasn't I suggest that you get on with the divorce as soon as possible. |
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Date: 7 Mar 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have form E to complete. I changed my job in December 2000 at the end of an atractive 3 year contract and my wages fell from £30,000 PA with free accomodation to around £13000PA,with a large mortgage. I also have some self employed income from a new business I set up ( which is unlikely to amount to more than a few thousand in this first year). I am afraid that as I have to produce pay slips and a P60, the court might see me as earning £30,000 and deal with the issue accordingly. How can I ensure the court see the full facts, as it seems there is very little opportunity to point this out. Should I attach a letter?
Paul
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| A. |
You can always add what is called a rider to each question on form E. Just put the court name, case number and parties names and head it RIDER.
Then continue on the seperate paper. As long as you cross-reference the rider to the question, that will be fine. |
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Date: 6 Mar 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
My husband left the family home in Sept last yr. - his request. Married 14 yrs, together 16. We are currently seeing a mediator to try and resolve financial matters. He is pushing me to sell the house but without my knowing what money I will have to buy a property for myself and the two children aged 13 and 6. My mother died in June last yr after being terminally ill from March - he told me he was leaving the day she went into hospital and was totally unsupportive and cruel throughout the weeks until her death. I have an inheritance which he says he can claim half of since his mothers money £20,000 is in our house - his mother died 14 years ago. He has debts in ;his name of £56,000 - I had no knowledge of these, indeed every penny I spent was requested through him and agreed or rejected. I have always worked, part time but salary of £16,000, he earns c. £42,000. Our daughter is being privately educated and I feel he wants me to offer up whatever of the inheritance I am left with to continue her education. To my mind I should hang on to the money to secure my future. Our house is valued at £310,000 and the mortage is £115,000. There are life assurance policies worth £26,000, one of which he says he has stopped paying (frozen? can he continue this at a later date?) I accept some responsibility for the debts we have incurred, but I thought they were somewhere in the region of £10,000 and he did not inform me at any time that they were at this level. He has since said that all along his policy was to borrow now and pay back at low interest rates as we were both earning good money and our salaries would increase and eventually the house would be paid off (2014). There are no other assets to speak of other than in the children's names, again, I do not know what these are and he is the signatory for most of them - I feel we should be joint signatories now we are going to be living independantly. Your advise pls.
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| A. |
Firstly for mediation to be an effective way to resolve financial matters there has to be full and frank disclosure by both parties. From the information provided I would say that your husband is not giving full disclosure. If you are to continue with the mediation process then you must insist on full disclosure.
You certainly need to have full details of how the debts were incurred. If the debts were incurred solely on items or services for your husbands benefit then you would be able to argue that they are his sole liability.
You need to find out what assets are in the childrens names and these certainly should be in joint names.
With regard to the life policies, generally premiums can be suspended for a certain period and then resumed. You will need to check with the specific company.
You make no mention of pensions ? You need to clarify whether either of you have pensions as these need to be taken into account.
Inheritances can be taken into account, however they have to be considered within the overall view of things and only when you have a full financial picture.
It would be my advise not to agree to the sale of the house at this stage. You need to have a clear picture of all assets and debts before making any decisions.
If you feel that your husband is not being honest in the mediation process then I would suggest that you contact a local solicitor.
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Date: 4 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My decree nisi is due to be issued shortly. My partner's solicitor has made no overture yet as to what financial settlement is being sought.Will I now get a Form E for the financial issues as a matter of course?
Since we separated I have started my own business. Are the assets from the business going to be taken into account? (office equipment and computers) and how can I protect them?
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| A. |
If no steps have been taken by your wife to deal with the finances, then you should do so. You can issue a Form, A which triggers the application for financial matters. You will then both be required to file Form E's and the matter will proceed in accordance with a strict timetable. The ancillary relief scheme works very well with the majority of cases settling either before or at the Financial Dispute Resolution. I really think that you should get on with this because until the finances are resolved, in theory everything is up for grabs including your new business. You can't protect your assets so the sooner you sort it all out the better. Good luck |
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Date: 3 Mar 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
My wife left the marital home on New Years Eve and has since moved into a flat. I gave her the money £5,000 for a 6 months rental and she retained the main car (£4,000). My wife suffers from clinical depression and could see no other way out other than to ask for a divorce. The depression results from a sexual attack that occurred in her youth and manifested itself some years back when our daughter became a teenager. She became frigid and before she moved out, out of control, financially for the last 2 years at least (approx 16-17K per annum on the credit card) and sexually in the last few months, before she left, with one admitted adultery (I don't want to comment further, this was a black time).
I currently live with our son 16 and our daughter 17 in the family home.
The house is worth £300,000 approx with an outstanding mortgage of £37,000. I have liquid assets of £14k left (cash and shares); my car is only worth £500.
We applied for planning permission to build another house in our garden. This was refused but since my wife left I have submitted an appeal and there is a fair chance that planning will be granted.
I have always been the major breadwinner and have always paid the mortgage, bills, insurances etc from a joint bank account but only my salary went into this account. Household expenses went onto a credit card and I paid these with minimal help from my wife. I currently earn £52K and my wife £13K. She is currently full time but in the past has worked part/full time. There is a child from a previous marriage on her side who is 22 (and downs syndrome). No maintenance was received from his father and I raised him as my own. At the time that I met my wife (in 1982, married in 1985) I was newly divorced and had my own home £37K and o/s mortgage of £25 (and I had borrowed £2.5K from my father, never paid back, to pay off my first wife). This house was later sold for £90K to buy our current residence, which has been extended and improved with additional mortgages, without the improvements the property would be worth £250K
My wife has asked for half i.e. £130K and if permission is granted whatever extra that brings. I think this is too much (advice please).
Also I would like to keep my options open. If permission is granted then I would like to build the single garage to attach to this property, sell the property and move into rented accommodation and build the new house.
My wife, if permission is granted wants the plot and house sold and to take her cut.
My children have told me that they wish to live with me and not their mother after a divorce.
So the question is: - Can my wife force me to sell the plot or the house before divorce proceedings has started.
I am trying to maximise the benefits that I will be able to provide for my children in the future i.e. cars, holidays, marriage, future homes, financial support etc. Items that my wife is unable of considering but maybe this doesn't matter? When you can't recognise the person you married and just see an empty shell, it is so sad but I have to consider my children and their future. Neither my wife or I have started divorce proceedings but I can see that she may take action after the result of the planning application. So emotions mixed with financial considerations.
Any advice gratefully received and yes I do know that I need to see a solicitor but I need some basic impartial advice before I go down that route.
I want to support my wife even though she is living a separate life now. I think around £90-£100K is reasonable and I have no problem with splitting the 15 years of pension I have accrued while we were together.
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| A. |
I am afraid that considerably more information would be required to give you an accurate answer. I would reassure you that a solicitor that is a member of the Solicitors Family Law Association would give you impartial advice.
It is difficult to give advice on a settlement figure without, among other things, the actual value of your home (the one you give is without improvements),and the predicted value of the land etc should you obtain planning permission.
If you can provide for your wife as regards maintenance, and your wife is in suitable rented accomodation, and it will not take too long to build the garage and sell the property, then I think you could argue that it would be most beneficial for the children and yourself that you take the course of action you propose.
Proceedings can be taken before divorce proceedings are issued under the Trusts For Land and Appointment of Trustees Act, however if divorce proceedings are likely then I would expect that your wife would be advised to take that route, as the divorce legislation would be much more appropriate.
I would strongly advise that you see a solicitor sooner rather than later.
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Date: 2 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I wonder if you can please advise of a best course of action in my divorce my wife and I separated July 2000 after her solicitor asked me to leave matrimonial home which I did (I am not violent). She stated at time there was not any one else but suddenly after a week or so a man appeared, she has denied a relationship from the beginning. Now she has moved out of the matrimonial home which has been sold with my 2 children into rented accommodation she has stated in a solicitor letter that she has no plans in the future to cohabit with her boyfriend but after her and children living there for 7 days her boyfriend has been staying with them also I have information that ties her boyfriend to this house he is paying one of the service bills, I work for one of the companies but am in a difficult position because I feel that if I disclose this information I could lose my job .all I want is a fair split of assets but my wife seems intent on the vast majority .part of my question is how do I legally prove them to be cohabiting and is she legally obliged to disclose this info to the csa which I have asked to intervene due to fact that I feel I cannot trust my wife .I thank you in advance for any advice that you may give me.
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| A. |
You really do need to go and see a solicitor who will be able to answer all your questions. You can start divorce proceedings based on the grounds of your wife's adultery if she will admit the adultery. If she does admit it, it will mean that a divorce can proceed on that ground without it being necessary to name the third party. She should understand that she will not be penalised in any way by being the person sued for the divorce. If she won't admit the divorce the other option is unreasonable behaviour.You don't say whether or not there were any proceeds from the sale of the matrimonial home. Provided there are sufficient assets, the intention is to try and achieve a fair and equitable outcome. However if there is not very much in the way of capital and income, the first consideration is always to ensure that the children are provided for and it may be, depending on your wife's circumstances that sh emay receive the lions share of assets. AS I mention at the beginning, you should seek legal advice so that all your questions can be answered more fully. You should inform the CSA that she is cohabiting and let them take it up with her. |
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Date: 2 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My decree nisi was dated October 1999 but my wife and I continued living in our family home until Dec 2000 when we moved to separate houses. No application for Decree Absolute has been applied for.
What is the last date on which I can transfer shares from myself to my wife without incurring a disposal for Capital gains Tax purposes
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| A. |
I am not a hundred percent sure and you should check this with an accountant but I seem to think that you have a year following the date of separation. You should also think about applying for the decree nisi to be made absolute if financial matters have finalised. |
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Date: 1 Mar 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
My husband and I have been married for nineteen years, and have two children, aged 16 and 18. My husband has been having an affair and is now moving out of our home to a rented flat, where his girlfriend will be living with him. Until the children go to university I will remain in the family home, but will then have to move, and we will then sort our finances out. His girlfriend will be renting her home out, and getting an income from this. In addition she has a lot of equity in the property. When she moves into the flat with my husband, whilst she will be contributing to the running expenses, to some extent my husband and I will be supporting her as she is going back to university as a mature student. My question is whether her assets can or will be taken into account in any financial settlements now, or at any time in the future.
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| A. |
Your husbands new partners assets cannot be taken into account per se. However the court will look at her income positon, be this salary, produced from capital etc, if your husband attempts to state that he is in someway supporting his partner. In effect the court will expect her to support herself and pay her share of their joint living expenses if she has the means to do so. |
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Date: 1 Mar 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
In spite of solicitor's letters, and a 1st direction appointment, my ex has successfully managed to delay presenting his Financial Disclosure. Can you suggest what his tactics might be? He is fairly wealthy, and I think he is using this time to offload his assests, however, I cannot afford the services of a private investigator. Is there any thing I can do by myself?
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| A. |
Your solicitor will be able to apply to the court to obtain a further order to force your husband to file his financial disclosure or face court sanctions, including ultimately the possibility of a prison sentence.
If you are aware of the assets your husband is off loading, it may be possible to get an injunction to restrain him from doing so. I would advise that you speak to your solicitor about this as soon as possible.
Even if your husband off loads his assets you can still ask the court to take their value into account in the financial settlement. Further you may be able to ask the court to take account of your husbands actions.
I would recommend that you discuss these options with your solicitor. |
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Date: 27 Feb 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am currently contemplating divorce and I have two main areas in which I require your assistance, namely Finance and Property.
I moved out of our matrimonial home about three months ago and stopped paying my half of the mortgage. However, the house is in my husbands name only. My husband and myself have now been married for two years. We are both working and have no children. I can prove that I have been paying half of the mortgage from around April 1999 to October 2001 (bank statement) and I also put in all the costs of purchasing the property (solicitors fees deposit etc) circa £4,000.
As my name is not on house, am I legally entitled to anything ? i.e. can I at least claim back what I put in and/or am I entitled to any money if my husband decides to sell the property?
The reason I have decided to divorce my husband (whom I have known for six years and been married to for 2 years) is because of abuse both verbal and physical violence. I have never reported any incidents to the police. Can I still file a divorce on these grounds even though I never reported any incidents to the police?
As mentioned earlier, I have now moved out of the marital home and I am renting at great expense (£600 per month). Although I want to go ahead with divorce proceedings, I understand that this is a very expensive process (between £700 to £1,000), and I am worried that I am not financially stable enough to take this on. Are there any other legal aid options open to me even though I am in full time employment?
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| A. |
Firstly, you will more than likely be entitled to some division of the assets and the return of your deposit monies. It is really a question of what you are willing to accept on a practical level, if you are unable to afford legal fees. I would suggest you request the return of your deposit together with half the equity after mortgage.
You will also need to register a caution against dealing over the house at the Land Registry to prevent him selling or disposing of the house until the matter is sorted.
As for the divorce you can do it your self without a Solicitor. They can handle the finances while you handle the divorce. this will save you a great deal of money.
We can help you in this regard through our LegalPac service. |
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Date: 22 Feb 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
I have been married since 1994 and bought our flat with a mortgage of £50000 in 1997 -we split 31st Dec1999 and have got divorced. I have a child of 4 yrs and we are living in this flat presently. Can my husband get the courts to agree to sell the house and split 50/50 bearing in mid that I am on income support and have no money or anywhere else to live? He is also trying to get me to pay towards bills that he has incurred in his name, which he had made when he was still with me and since.
Some items are HP but he is claiming that all items are on HP and as not paid for them. All items of furniture and electrical items have been bought in his name. I put money towards the house of £3000 and have been paying towards the bills while we were married. Could you tell me where I stand towards the house and the question of his debt, please?
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| A. |
When dealing with financial applications any lawyer needs to have a full picture of the financial situation of both parties and a financial history of the marrriage. Unfortunately from the information provided I am unable to give accurate advice and I would suggest that you consult a local solicitor. As you are on income support it is likely that you would be entitled to Legal Aid.
I can assure you that the courts would expect your husband to produce documentary evidence to support his claim for alleged debts and to show that there is outstanding HP agreements on the appliances. Further the court would treat as a priority your need to provide a home for your child. |
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Date: 18 Feb 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I am not married but have cohabited with my partner for 7 years this year. During a recent bout of playful banter between us, it was made plain that if ever we split up he is not going to let me have a penny. Everything is in his name due to a bad credit history on my part (although this was over 6 years ago now and I should be legally in the clear now). I can prove all my excessive (more than his) contributions to the domestic living arrangements, bills, household items / decorations etc. as most have been paid directly from my account over the years (although we hold a joint account now) and him giving me money on weekly basis as his contribution. We (in his name) now own our own home (2.5 years) having rented before. Do I have a legal claim to the house or could I reasonably expect to be awarded my fair share if we ever did split up - even though we are not married and it is not in my name - or am I just spending my money in vain and wasting my time as far as securing my financial future is concerned.
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| A. |
Seek advice immediately from a solicitor. The law in this area is very complicated and is governed by substantial case law.
If you separated you could have a potential claim under the Trusts for Land Appointment of Trustees Act. This could be as a result of a constructive trust or a resulting trust.
Without having a huge amount of information from you I cannot advise whether you would have a claim, although on the face of the facts it is likely.
Whilst I appreciate that you and your partner are still together it would be far better to deal with this issue now rather than if in the future if a problem arises. You should consider having the property placed in joint names or a trust deed drawn up protecting any share you may have.
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Date: 13 Feb 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My wife and I have come to the conclusion that there is no point in continuing with our marriage. We argue constantly and do not get on at all any more. We have a one year old son and have been married just over three years now. For the sake of our son we would like the split to be as quick and amicable as possible. We believe that I, or her, have grounds for unreasonable behaviour and neither of us would contest that. We have found that we have about £60k equity in the house, my wife works and earns £20k, I earn £35k. We are in agreement about splitting the assets inside the house and the earning ratios have been pretty much the same throughout the marriage. We have always split our money to pay for everything. The house is about to go on the market but I am not sure what difference it would make if we were to sell before divorce proceedings or after. If we both buy seperate houses would the court then accept this as a straight split and give a clean break or is there likely to be more financial support needed. We have a list of all our financial details which I can email. We are both 27 and want to get on with our lives. I want also to make sure that we both get what is right, I accept that she is likely to get more as she will be the main carer for our son although I plan to get joint access. I want to get on with my life but am confused as how is best to proceed. Can you offer any advice? Apologies for the length of this.
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| A. |
Either one of you can start divorce proceedings based on the grounds of unreasonable behaviour. It has no implications either in respect of contact with your child or finances but facilitates a divorce. You then need to look at all the assets and income and work out firstly what your wife will require to re-house herself and your child and what you will need. Its a fairly complicated exercise and it would be worth your while to talk it through with a solicitor before you try and work it out with your wife. If you are unable to reach an agreement between you, then the matter will proceed through the courts. |
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Date: 13 Feb 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
I am 48 have just suffered heart attack and a bypass and tumour on heart and am divorcing. I have children age 23, 2 at University 21 and 19 and 161/2 year old. House is worth £200,000 Husband earns £35,000 and I earn £20,000. My sister gave me a gift of £25,000 about 12 years ago which I was persuaded to put into the house mortgage. Am I entitled to this before we split the house. Is it on a 50% basis or can I get more as I still provide a home for the children. If 50% can only afford a 2 bed roomed place but really need 3. No savings to speak of but an Endowment maturing in 12 years to pay mortgage. Husband can retire in 6 years with full civil service pension. I will have 1/4 if I work till 60 health permitting. How does one split a civil service pension as only paid on retiremnet. He will get a good lump sum as has worked for 40 years. Grounds are mental cruelty/unreasonable behaviour have been living apart in the house. ?What are the rules for that if I wait the two years. Can I sell the house and split before a divorce.?
Many thanks thios is all so new to me and recovering from major surgery too. Have just gone back to work
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| A. |
Your question is very detailed, though to give an accurate answer then any solicitor would require alot more information.
To deal with the gift from your sister. You would not automatically be entitiled to the return of this money from the sale proceeds of the house, although this would be a factor you could ask the court to consider.
With regards to the split of any assets, this is not automatically on a 50/50 basis. The court would look at a number of factors, and in your case(on the facts provided) this would include:-
1)your health position, and how this may impact on your ability to work
2)the disparity in your income positions
3)your needs for housing for yourself and the children
4)the disparity in your pension positions.
I would suggest that you gather obtain as much information as possible on all financial matters, relating to yourself and your husband and then visit a local solicitor for more detailed advice.
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Date: 13 Feb 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
My wife walked out on me and the children although only one of them was under 16. I have to keep the house feed and clothe them etc.. do I have to make any payments to her. She now lives in Scotland and I am in England. Before she left I gave her a lump sum only £2,000 and gave her £250 per week for 3 months.
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| A. |
It is difficult to answer your question without more detailed information on the finances of both you and your wife.
Generally you would need to look at the financial position of both parties, to include the income of the parties, their respective outgoings, the assets of the parties whether in joint names or sole and the liabilities of the parties.
It would be prudent to try and gather this information together and then visit a solicitor. The more information you are able to take to the solicitor the more accurate the advice will be. |
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Date: 11 Feb 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband has been in Nigeria for 3 years & wishes to remain there. We both wish to divorce. Our youngest child is 17, our home is in joint names with a mortgage. He has said he will sign anything in order to obtain a divorce including the house. Can he sign the house over to me even though it is mortgaged. Will the house have to be re-mortgaged or can I maintain it under the present conditions. Can the title document just have my name on it, but the mortgage have both our names as I would be unable to obtain a mortgage for this amount, although I have been paying it myself for 2 years. He has not seen any of his 3 children for two & a half years and has no desire to do so. He just wishes to be free and says he will agree to anything. What do you suggest?
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| A. |
The court can order the transfer of a property subject to the exisiting mortgage, so both parties remain laible for the mortgage. This is quite usual where one party is on welfare benefits, for instance.
If your Husband will agree to this, you need to see a Solicitor to draw up a consent order and the transfer of equity subject to mortgage. If you are on a low income, you may be entitled to Legal Aid. |
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Date: 11 Feb 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
I have been married for about 3.5 years and now divorce is very probable. I bought our house before I got married and its only in my name(well I exchanged contracts before the wedding but completion took place after the wedding, Im not sure if this complicates/changes things?)
We lived there for about 6 months together, I paid the deposit and all the mortgage payments. I have now been renting it out for 2 years and the capital value in the house has has greatly increased.
I would like to sell or transfer this house before any divorce proceedings commence, because I believe I have a right to it.
My question is can I transfer it to a friend or does he have to buy it (for a below market price) meaning that he has to also pay stamp duty solicitor fees etc..
I realise transfering is subject to the mortgage companies agreement, but are there any other legal or administrative problems? Such as will friend be liable for tax, because the equity that is transfered to him
may be considered as a gift?
Please give me any pointers or guidance on which is the best way for me to achieve my objective, including any possible consequences such as the court possibly reversing any sales or transfers.
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| A. |
If you and your wife do divorce as you predict, the court are able to take account of all assets whether in your sole name or in joint names.
Even if you are able to sell your house before divorce proceedings commence there is nothing to stop the court from taking this into account. I also think that it would be probable that your wife would then ask the court to conclude that you had sold the house, whether at an under value or not, to attempt to prevent her from making a claim over the house. Further if you did sell the house at an under value your wife could ask the court to take this into account when considering any financial settlement.
If your wife became aware that you were attempting to sell this house it may be possible for her to issue proceedings to prevent the sell pending the conclusion of financial proceedings in your divorce.
In light of the above advise may I suggest that you seek the advice of a local solicitor before you take this matter any further.
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Date: 7 Feb 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am midway through divorce proceedings and have agreed financial split between my wife and myself. My question is once this has occurred does my wife have any further claim over my assets now or in the future?
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| A. |
Once the settlement is agreed, it is usual for a consent application to be filed with the court, setting out the terms of the agreement.
If accepted by the court, it is turned into a binding order which will set out the different Acts of Parliament for which no further claims can be made. |
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Date: 7 Feb 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I read somewhere on your site that a recent House of Lords ruling means the courts try to split assets more evenly.
My financial settlement is about to start, we have £100,000 equity, were married 11 yrs, 1 child from my wifes 1st marriage. I put £27,000 down when we bought the house and we got a substantial discount as it was a council property. I spent another £10,000 on improvements etc. this money was inhereted.
My wife's name was on the tenancy so she is trying to claim the credit for getting the discount although I was married to her and was paying all the bills as she didnt work.
She has asked me for £85,000 to buy a house outright, my solicitor says I should expect to give her up to 75%, in your opinion is this realistic?
I have worked out that taking into acount my cash deposit and assuming we get half the discount each I should get 65% although I am happy to go 50/50. Am i likely to get this?
I also suspect she is cohabiting and plans to set up home with her new chap at my expense.
I would appreciate your comments on the above.
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| A. |
This case really refers to cases with substantial assets and was called White-v-White.
The court in cases like yours where the are what I would call normal assets, will look at both parties circumstances and future needs.
It may be the case that your solicitor is basing their advice on the fact that you have a higher earning capacity than your wife and will be able to recoup capital more quickly in the future than your wife, which is often the case. |
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Date: 7 Feb 2001
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
How is my house affected (no mortgage) I’ve 2 daughters age 9&10, and just separated from wife after being accused of adultery? 2 years ago she filed under behaviour but we got back together. It is now 5 weeks and I haven't heard anything from her or her employer solicitors. She does not allow me to see our children (9&10), & I have applied for access through my solicitors.
How can I have access to the equity in the house so I can buy my own flat?
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| A. |
It is difficult to respond when you have so little information. Obviously the purchase of a flat will depend on its price and the available assets value (the house). You appear to say that you have served with an adultery petition. You do not say whether you wish to defend, reconcile or whether you will allow the petition to proceed. Assuming you do wish to divorce on whatever ground you should try to negotiate settlement via your solicitors whereby you receive a lump sum from your wife. If that cannot be done then after Decree Nisi you should institute financial proceedings requesting that the property is sold and/or that you receive a lump sum. It is unlikely that a Court will order either unless there is sufficient equity to adequately rehouse your wife and children first and then you. This could be following a sale or following her reordering or borrowing in some way. Given that you have already instructed a solicitor you should ask for formal advice on the issues you have raised.
Hope this helps in the meantime.
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Date: 4 Feb 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My husband is on remand for an attack he made on me .... he has mental and physical problems - we are going to separate but will this attack be taken into account when the financial situation is sorted out ? He is retired through ill-health with a good pension and we have a son at university
Will my husband have to contribute to university fees and will I be entitled to any of his pension
Will we have to split the house 50-50 ? I work part-time and earn about one-third of his pension plus disability allowance - in spite of what has happened I would like this to be reasonably amicable
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| A. |
When working out your financial entitlement, everything comes into the pot to be divided. Its unlikely that you will receive more of the assets because of his conduct. You will be entitled to what is considered a fair and equitable split of the assets including his pension. I suggest that you see a lawyer so that you can make sure that you make a proper claim in accordance with your entitlement |
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Date: 1 Feb 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I am currently living out of my home since my husband and
I have decided to sell it. Before then he was living in the home
For a year and I was living abroad with our children. We had
Decided to sell everything and split the funds in half. Because
Things have since gone sour he has emptied the home and
Has taken all the contents to his rented town home. He is
Also trying to blame me for taking everything and I didn't take
Anything that couldn't fit in a suitcase on the plane. We had
Expensive contents including furniture, pool table, and
Paintings. How can I go about getting the funds that we
Originally agreed upon if nothing was signed? I have an
Inventory of everything in the home and our friend had
Gone inside the home to price label everything so there is
A witness that this list is accurate. He also sold my car which
He gave me for Christmas (it was in his name). I feel as
Though I’m entitled to the funds from that as well.
Two weeks before he asked me for the divorce he emptied
Our bank account and purchased a new sport scar worth
Much more than mine.
My lawyer feels that there is not much I can do. What do?
You think?
We were married 10 years and have two children. I did
Not work and we were living on his work permit. When the
Marriage ended I had no choice but to leave.
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| A. |
This is a tricky one. You do need to speak to your lawyer about ensuring that when the house is sold that you are compensated financially for the assets, which he took. A fifty fifty split may not necessarily be right. I don't know enough about your finances to advise you on this but if you have the care of the children and his financial contribution is not adequate and he has taken and sold assets, then an equal split of the proceeds from the house doesn’t seem fair and equitable assuming that there are no other assets. I suggest that you talk this through again with your solicitor. You shouldn’t agree to the money from the sale of the house being divided and paid out until you have a firm agreement on the finances. |
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Date: 26 Jan 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My wife and I agreed to separate our financial affairs from 1-1-96. We are in dispute over how to value the company that I had a 30% stake in at that time. I understand that shares should be valued at face value on the basis of the market.
The company was privately held, so I think the way to value it is to take 30% of the company's value as of 1-1-96. (Which was the average of the 6-30-95 accounts and 6-30-96 accounts). This method leaves me owing my wife £2K.
My wife checked the current company with a new product developed after 1-1-96 and found that we have an IPR value of £75K. As a result, she feels that this £75K represents the market value of the product and the split should be based on that - netting her £9K.
I don't feel that the new product has any bearing on the value of the company as of 1-1-96 because:
1. The product that was sold in 1-1-96, for telecom planning, was abandoned as the market for it went away.
2. The 1-1-96 The Company went into liquidation in 1-98 because of this.
3. We developed a new product (for telecom pricing), which received substantial funding post 1-1-96 (approx. 350K).
4. The estimated value in the new product was a direct result of the development of the new product and has no bearing on the value of the product sold on 1-1-96/separation date.
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| A. |
You have a potential problem here because despite the fact you divided assets up in 1996, you never finalised it all. So your wife could argue that a current valuation should be used. I suggest that you seek legal advice immediately as you will need to go through all assets not only the company assets. |
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Date: 23 Jan 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My wife told me to leave the house at Christmas, as she does not love me anymore, she says she wants a divorce. I have two children aged 2 & 7, my wife is living in the house, which is owned in my name, we also have another house which is in joint names.
I suggested to her as we are both in agreement that we will not get back together, that we sell both of the houses, use the proceeds to pay off all of our debts, both single and joint ones so that neither of us have any. I would then pay her £1200 a month to support the children and herself, pay rent etc.
She says this is not good enough, and wants me to pay the debts, she gets half of the sale proceeds and I pay her £1800 a month, which is just over half of my income.
My wife decided that she wanted a divorce because she does not love me anymore, and she threw me out of the house, should I be paying to support her, or should I just be paying to support the children.
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| A. |
It is indeed a shame that you did not take legal advice before you left the home. Unless you behaviour was aggressive, threatening or abusive, your wife is not entitled to make you leave. This would have meant that you could try and negotiate a fair deal whilst at the same time motivating her to bring the matter to a conclusion. There is little motivation for her to move matters along which will inevitably mean a change in her circumstances i.e. once the properties are sold. I really don't know enough about your case to advise on the final outcome but if your wife is not working, and you have always supported her, then you are obliged to continue to do so as well as provide support for the children. In time she will be expected to work but again this will depend on the actual circumstances of your case. I suggest that you seek independent legal advice so that answers can be provided to all your questions once you have furnished all the relevant information. Your wife will not be financially penalised because she is the one who wants or initiates the divorce. The level of maintenance needs to be worked out according to her reasonable needs and your ability to meet those needs as well as leaving you with sufficient funds to meet your own reasonable outgoings |
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Date: 21 Jan 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My wife and I were together for 4 years and have been seperated for 4 years. We bought a house to rent out. The mortgage is in joint names. Will the property be split 50:50 after we divorce, after 5 years separation ?
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| A. |
It could be provided that nothing has changed between you. You really should try and wrap it all up because the longer you leave it the more complicated it can become. |
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Date: 19 Jan 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
My wife and I have just split - and we have agreed to divorce, we have one son aged 3 years. I have left the matrimonial home.
My question concerns finances as my ex seems intent on ''taking me for as much as poss'', albeit i do not believe i have alot to take.
house joint names - equity £10-12K - mortgage £52K
loans - £13k - my sole name although jointly accurred.
savings - none
assets - car (wifes)
we both work full time
I ideally want 50% equity / her take 50% loans / me pay maintenance for son.
She wants house /100% equity / no responsibilty for debts / car / + maintenance for son
Can she achieve this thru the courts....?
Many thanks
What would you suggest is a reasonable outcome to offer / accept / court imposed....?
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| A. |
Because I assume that your wife is the main carer of your child, the courts main concern is the welfare of your child. So this could mean that your wife could get the equity from the house so that she and your child can be suitably re-housed. Although you say you are both in employment, without knowing what you each earn, its difficult to advise further. Depending on your ages, pensions (if you have any) could be relevant too. Its not possible for your wife to necessarily take it all, although it may feel like that. The courts try to achieve a fair and equitable outcome if there are sufficient funds to do so. If there aren't, because you have a young child, the first and main consideration is the well being of the child. It may be when looking at all the factors ie say if your wife earns half of what you do, that its not fair that you take half the equity and expect her to pick up half the debts. As always, it may be helpful to seek legal advice when you can go through all the factors. |
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Date: 16 Jan 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Basic facts.
1) Married 19 years
2) Wife left to go and live with close family friend
3) Children live with me ages 18 / 19 were only 15/16 at time of separation
4) Both children in full time education, 1 at university 1 at college 6th form.
5) 1 at university spends 23+ weeks at home per year.
7) Wife has contributed £150 only since leaving in February 1998
8) I have supported children and myself fully since 1998 and continue to do.
9) My wife works her income is about 10k
10) My income is about 23k
11) My pension has a transfer value of about 30k
12) House valued at 75k
13) Mortgage is 15k
Although I realise that I am asking an almost impossible question for you to answer, can anyone give me any idea of what it will cost for me to get a clean break divorce. I.e. what my nearly ex wife will be able to claim. My children consider this house their home and I wish for them to live here until they decide to leave. My wife lives with her new partner in his house, there are no dependants there (he has a son who lives elsewhere and who works. According to my wife, her solicitor will decide what is a fair settlement for us both. I have consulted a solicitor but wish to keep my costs to the minimum. I have been asked to provide all my financial details going back at least 12 months, while she has only give some sketchy details from odd periods of the year.
Do I have to give values or valuations for things that I have purchased since the separation, for example I bought another car for £3500 (badly needed as my old one was 11 years old and I have to travel 65 miles a day to get back and forth for work. when she left she took her car which was only 6 months old. Any rules of thumb or guidelines would be greatly appreciated.
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| A. |
If the Court were to consider finances they would need to know the current assets and liabilities of the parties. However the car is not going to be greatly relevant as it is a depreciating asset.
Whilst it is difficult for me to give you advice on a likely settlement it may be worth considering whether you can make your wife an offer of a lump sum on a clean break basis. It might be worth offering her £30,000 raised by way of mortgage on the house to 'buy her off'. Obviously this does not take into account pensions and you do not say whether your wife has any provision of her own.
Your solicitor cannot advise you properly without full disclosure from your wife and a Court application may be needed to force that disclosure out of her. Also if she is co-habiting then her co-habitees income and capital will be relevant. In view of this she may be amenable to a lump sum settlement quickly. In my view it is worth a try. If she will not accept then I am afraid litigation may take some time and will of course mean legal fees.
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Date: 11 Jan 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have tried to search this item and so far have been unsuccessful; perhaps everyone knows what this is except me.
On solicitor billings, some items are also listed as
"ENHANCEMENT 50%"
Exactly what is this? And how is it figured?
Thank you very much.
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| A. |
On some bills Solicitors will charge a basic hourly rate but are also entitled to apply a mark up which can vary from 50-100% depending on the case. This is for care and control over and above the basic rate.
I know it sounds like you are being charged twice for the work but when the case is finished the bill will have to be taxed by a judge who will decide if the mark-up is justified.
Most bills are taxed down to some extent.
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Date: 11 Jan 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I recently discovered that my wife of 6 years has been having an affair with another man, we have one child aged 4. This is the second time she has had an affair that I know of. And I wish to Divorce. There is substantial equity in our jointly owned house, mortgage is 130,000 and the house is valued around 350,000. If I separate it is impossible for me to pay the mortgage and rent on a flat at the same time, we can barely pay the mortgage as it stands, the house is a 4 bedroom detached house. My wife has investments in shares (50000-100000) but no other source of income. During the early part of a our marriage my wife’s parents gave her some allowance to help her continue studying, some of which she saved and invested and some which she helped to pay our expenses, she also contributed 20000 pounds to the deposit on our existing house, I have always paid the majority of our expenses, while her share income was spent on fashion clothes etc.
My question is will my wife’s allowance be included in any financial settlement that a court is likely to order, i.e. would I have to pay it back? For example from the equity in the house in event of sale, and how would the court view her share investments, (at least 30,000 pounds of the money was from my savings, but is now in her account)
Also she claims that money from her parents was used to pay of some debts, this is hard to prove as all the money is 'mixed up' in joint accounts etc, will I have to pay this back in any way?
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Your could petition for divorce based upon your wife's adultery and within the proceedings an application could be made to have the finances determined.
In view of the substantial equity in the property it is likely that it would be sold. If small children are involved and the wife has no earning capacity and equity is limited then the Court would not order a sale but in this case there is enough money for both of you to purchase alternative homes.
You do not say if your wife has an earning capacity, if so, then she has a duty to mitigate her own needs.
Substantial disclosure would need to be provided by both of you before firm advice could be given. My advice is to go and see a lawyer with all your paperwork but do not move out of the home if you cannot afford it.
Contribution to capital of marriage is taken into account, check out the site for more information on what else the Court consider.
All assets of both parties are taken into account when considering the finances. If the money from her allowance was used to pay of debts and they were matrimonial debts then you should not have to pay it back.
Unlikely that the allowance your wife received would have to be repaid unless documents can show it was a loan.
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Date: 9 Jan 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
Please can you tell me about the Financial Dispute Resolution Meeting? Who will be there, what is the format, what is expected of me, how long does it take, how can I best prepare for it?
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The purpose of the FDR is to faciliate negotiations with a view to the parties reaching an agreement which can be made an order of court. That will bring the litigation to an end. It is an informal process. Both parties and their legal representatives attend. All offers that have been made are made available to the District Judge who will give a view as to what the likely outcome will be. The purpose of this is to ensure that offers are realistic and with the courts intervention, hopefully the issues between the parties can be narrowed to the point where they can reach agreement. You need to make sure that all the financial disclosure is up to date, that there are up to valuations on properties. If either of you will need to move you should have property details of suitable properties of the price range being considered available. Usually the parties are directed to be at court an hour before for the purposes of negotiating. The actual FDR is usually listed for an hour. Often talks can take place all day. Good luck I hope it goes well |
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Date: 8 Jan 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
A good friend of mine has been presented with the following divorce settlement demands from his wife: -
1/Sign over house to her. Its worth about £70k and there is no mortgage.
2/His pension transfer value is £98k, wifes is £23k. Wife wants half of his figure and all her own.
3/Wife wants maintenance for her and for only child who is early teens.
4/Wife wants to keep all her money and have 1/2 of all joint monies transferred to her name.
5/Wife wants him to sell his deceased mothers house (jointly owned by him & sister) and give her 50% of his proceeds. House worth circa £65k, but he will probably have to live there himself.
Is this a fair, equitable or even normal set of demands? Is there any point in him fighting for a more reasonable settlement?
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Yes it would seem to be unreasonable in the circumstances. Clearly I cannot advise as to what he would get only how the Court would go about dealing with it.
An important factor is reasonable needs and his wife's reasonable needs appear to be being met and then some!!.
May advise is to go to a solicitor will all financial information collated, including pension provision an d income and they will be able to give advice as to likely outcome and what is reasonable.
I cannot say whether maintenance would be payable for the wife as I have information regarding her situation.
I would refer you to the site for more details on the section 25 factors, which are the sort of things the Court have to take into account, when considering financial settlement.
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Date: 7 Jan 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Please can you tell me the legal definition of Perjury and Fraud.
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Perjury is telling lies on oath whether orally or in an affidavit or sworn statement and fraud is the obtaining of a pecuniary advantage by deception, i.e getting money or something that could be worth money by deception. |
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Date: 6 Jan 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
is it fair that my ex husband puts share losses in the liabilities section on the finanacial statement
I know he buys and sells alot of shares but the only ones he shows have made substantial losses
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They are not strictly liabilities as they are losses in relation to capital and not income. he does not owe any money on the share transactions and therefore they are not liabilities. if the matter proceeds to a FDR it should be raised then.
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Date: 3 Jan 2001
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My wife and I have been discussing divorce for sometime and now she wants to move ahead with this.
In June 98 I was offered a new job which doubled my salary to £25k, a couple of weeks later my wife informed me that she was pregnant again. We had already discussed children and I made it quite clear I did not want more children. At the beginning of August I started my new job and 2 weeks later we agreed to separate.
My job gave me benefits of £25000, 8% company 5% own contribution, Company Car, 10% share bonus per year. At the time I took home approx £1250
My job before this I was paid £12000, 5% company pension and 5% share bonus. I took home about £850 per month.
She stated she wanted to move house, which I agreed to, and our mortgage increased from £29k to £33k, the house is now worth £70k, but I have never lived there and the mortgage is in both our names.
Our car was sold and the cash was split 50/50.
At the time we had no cash, but she kept all the property in the house, TV, fridge, etc.....
I left to live with my parents.
We have no separation agreement.
At the time we agreed that she could give up her job to look after the children (now 6 & 22 mths) until the youngest was 18mths old and she would have to get a job then.
At the moment I pay the mortgage, the utility bills, food, clothing, basically all bills except water and council tax (£60 per month).
Since then my salary has increased to £34k. I have debts of £6k but shares of £10k. My take home salary is about £1750 per month.
My outgoings - £420 rent, £400 petrol, £200 month food, £60 month council tax, approx £600 maintaining my wife.
I am now living with someone who is long term sick and is on sick benefit but has no job.
As you can see I have no spare cash to speak of.
What could I expect in terms of a financial settlement?
Am I being too generous in the way I have maintained my wife? Her standard of living has probably improved since we split up.
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I cannot advise you on what settlement you would get. The expert questions are not designed for me to give specific advice on particular circumstances. All I can do is advise you as to what the Court take into account when considering financial matters.
It is likely at the moment that you will have a maintenance liability to your wife and obviously your children. It is also likely in view of her circumstances that you will not receive any capital from the home certainly in the near future, your claim may be postponed which is quite a common order when there are young children involved in a case.
Clearly am important factor is that your cohabitee cannot work and that will be taken into account by the Court.
The other factors are referred to as the section 25 factors based upon criteria set out in the Matrimonial Causes Act 1973. I would refer you to the site to gain more details of these and check out FAQ's for further info.
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Date: 13 Dec 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
In June of this year I discovered that my wife of four years was having an affair. At this time I also admitted to my wife that I also was having an affair. We decided by mutual agreement that we should continue to live at the jointly owned marital home but lead separate lives. This was partly for the sake of our two daughters aged 6 and 11 and also to allow us to settle a proportion of the debts between us. It was also agreed that both my wife and myself would continue to work.
In November of this year my wife decided that she no longer wished to continue with the agreement and contacted a solicitor. In turn I received a letter from her solicitor highlighting that my wife would be able to divorce me on the grounds of adultery or unreasonable behaviour. They also said that my wife would in the short term be able to remain in the matrimonial home and in the long term I would be expected to provide for her and our children with a home. Also that in view of my alleged behaviour (untrue) my wife would be justified in gaining an injunction against me. My wife at this time also chose to give up her job and make a claim for income support and legal aid. Over the following days my wife made my life so intolerable that I chose to no longer sleep at the property but seek refuge on friends floors and sofas. I also chose to tape any meetings with my wife to counter the continual letters from her solicitor alleging my unacceptable behaviour. My wife also fitted security chains to the property and changed one of the locks to prevent me gaining access. In December I received a request from her solicitor asking me to accept a divorce on the grounds of unnamed adultery. I also received a request on what my intentions were with respect to the household bills and the mortgage. There is also now a matter of an u/s-heating boiler, which will require £1100 to replace. My wife though in denial is now cohabiting with her new partner at the former marital home. My income is £25,625/year. The value of the property is approx £100,000 with a £52,000 mortgage. Our debts total approx £5000 (my name), £1500 (Wife) and £1000(Joint). All debts have been to the benefit of both parties. There are two mortgage linked endowments which are due to mature in 2011 to the sum of £20000.My wife's solicitor is a member of the family law association but seems to neglect its code and court confrontation. I do continue to pay the mortgage and associated endowments and insurance.
Please advise:
1. Would I be liable for the household bills even if they were not in my name?
2. Could I be liable for the repairs to the boiler?
3. In view of our debts would a court be likely to force the sale of the property.
4. How could I prove that her new partner is cohabiting?
5. What would my best course of action be?
6. Can I report her solicitor to any ombudsmen body due to her failure to conform to the family law code?
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| A. |
Your financial situation is complicated some what by the fact that your wife needs somewhere to live with the children and is in receipt of income support.
Although there is substantial equity in the property it is unlikely that you will be able to release this until perhaps the children are much older, your wife begins work again or you can prove that she is co-habiting. It is difficult to advise completely on the position regarding the debts.
In respect of the household bills if these are not n your name then you cannot be held liable. However you are of course liable for maintenance for your children, your wife's solicitor may even try and pursue maintenance for her, although this may be difficult if she is co-habiting. Proving the cohabitation can be hard but photos can help and as a last resort perhaps employing an Agency to carry out surveillance on your wife and her partner.
Sofaras the boiler is concerned if your wife needs a new boiler and she intends to live in the property and instruct someone to replace or repair then it will be a matter for her to find the funds to pay for this service.
My advice is to get this matter before the Court asap as it looks like you are not going to able to resolve matters amicably. The new procedure for ancillary relief makes the process much quicker and you can obtain advice and assistance from the Court on how to proceed.
In respect of the compliant regarding your wife's solicitor, if she is breach of the SFLA code then you should report her to the SFLA not the Ombudsman.
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Date: 8 Dec 2000
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I am currently seperated from my wife, and have found a new partner, She has 3 young children and is still currently married, Her husband is aware of the situation and claims that If she leaves him, He will sue me, for the debts outstanding on loans etc and for the breakup of there marriage. Can you please advise what he means by this ?
Many thanks
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| A. |
What he is doing is trying to place responsibility for debts and loans on your shoulders rather than his own and presumably trying to get you to stay away from his wife. He may also been placing her under emotional pressure. He cannot sue you for payment of either his debts or those of his wife neither can he sue you for the break up of his marriage. What he may do is sue his wife for a divorce based on the grounds of her adultery with you. That doesn't mean that he will have a financial claim against you or that his wife will be financially penalised because she is the one being sued for a divorce. It is not considered good practice to name the third party and if he goes to an experienced family lawyer ie one who is a member of The Solicitors Family Law Association, he will be discouraged from doing so because it serves no purpose. It sounds as those he is finding it difficult to come to terms with what is happening and if either you or your girlfriend have any questions about the legal position, you should seek legal advice. Your girlfriend should not sign or do anything at all until she has taken legal advice. You may wish to get my book "I Want a Divorce?" in which both the emotional and legal aspects of divorce are explained. |
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Date: 6 Dec 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife has started divorce proceedings and I have been told that I can remain in the family home as long as I still pay the bills as before but she can get a court order to have me removed. If this is the case will I still have to carry on paying the full household expenses?
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| A. |
Your wife can only have you removed by obtaining an occupation order under the Family Law Act 1996. She can only obtain this if she can show that your behaviour is likely to cause her harm. This is usually following physical violence but can also include mental cruelty.
She can also obtain an order within the application for you to pay certain household expenses such as the mortgage, utility bills etc.
If she is unable to obtain an order you can remain in the home until your financial dispute has either been settled and the house dealt with or the court has made an order.
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Date: 5 Dec 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife tells me we are now legally separated. (We live apart, she went off with a wheelchair mechanic) leaving me to sell the house, split the proceeds which I’ve done and support the kids.
I now have a new life and business that I set up at the time of the separation, my question is: Will she be entitled to any of the business at the time of a divorce (if I choose to divorce her) will she have any claim over me or my assets?
My next question is, should I divorce her, or let her spend her own money divorcing me, I'm the innocent party (I think)
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There is no such thing as a legal separation.
Your wife and indeed you as well are entitled to have all the assets looked at by the court at the time of the application, so yes she is technically entitled to make a claim. Whether she would be able to derive any benefit from the assets or income from your new business would depend mainly on her need for capital and income. The fact you have already dealt with the assets at separation would also be taken into account.
You say she is now cohabiting with a man. If this relationship is permanent then the court would take this into account.
You should apply for a consent order when the divorce is underway to dismiss all future claims between you.
The consent order should be prepared by a Solicitor but can be dealt with separately to the divorce to save money.
You are in a position to divorce your wife for either adultery or unreasonable behaviour and can do this yourself to save costs.
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Date: 3 Dec 2000
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
I divorced about four years ago and my children stayed with me. My ex-wife remarried and the house was never sorted out can I claim it now?
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| A. |
Your wife's claim would be appear to be dismissed but yours may still be valid. Who lives in the house? How is it owned? One would need much more information to advise you on a claim of this nature.You must however get some legal advice prior to taking any action.
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Date: 2 Dec 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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what is an open proposal for settlement
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Generally this would be a letter from one of the parties in person or, more likely, from Solicitors setting out the terms upon which their client is prepared to agree. It is termed "open" to distinguish it from "without prejudice" proposals. If the proposal is "without prejudice" the other party is restricted from producing that letter or document to the Court in subsequent proceedings. There is no such restriction attached to an "open" proposal. |
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Date: 30 Nov 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I am in the middle of divorce; my husband lives in our matrimonial home (largely purchased with his inheritance). I now have my own house, which I have purchased using some of the equity from the matrimonial home and mortgage. We were awaiting a two-year separation, however owing to pending changes with my work I am hoping to get matters settled relatively quickly. I am petitioning for divorce on the grounds of my husband’s adultery. (He admits) but has been slow to do so for reasons of his own. My solicitor has advised me that if he continues to be slow to respond particularly where financial disclosure is concerned then I should apply for ancillary relief. Having spoken with my solicitor I am concerned with the impending cost. My solicitor does not provide legal aid. I would not qualify at present however on my job changing, my lower salary would possibly entitle me to some financial support if not full legal aid. Please advise me:
1) Am I able to change solicitors to settle financial matters so that I can benefit from legal Aid?
2) Would the above be of detriment to my case?
3) Is there any way of estimating costs, as I am concerned that any money that may be rightly mine may end up being dissolved in legal fees?
Many Thanks for your help. I am pleased to have found such an apparently helpful site.
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To answer your numbered paragraphs:
1. You are, but you would still need to pay your present Solicitors for the work they have done to-date. Legal Aid is not retrospective.
2. Not necessarily, but it would depend upon the advice and service you obtain from your new Solicitor. There will be an element of duplication because your new Solicitor will need to obtain the file and read all the papers. The possible benefit is that the rate of charging under the Legal Aid Scheme will probably be less than the amount being charged by your present Solicitor as a private client. You should, however, check to compare the two. You should also be aware that, even if you receive Legal Aid, at the end of the case, if you have recovered or preserved property or money, you would be required to repay to the Legal Aid Board any amounts paid to your Solicitors under the Legal Aid Certificate. This is called the Legal Aid Charge and whilst there is an opportunity to postpone the operation of it, interest will be added to the amount until it is repaid. You may also have a contribution to make to your Legal Aid, which is payable for the whole time the Certificate is in force. This will be a monthly contribution, the amount of which will be determined by the Legal Aid Board.
3. It is recommended that you seek an estimate from your existing Solicitors for the cost of concluding your case. They should be able to provide some estimate, however approximate.
If you have reached a basic agreement with your husband already about financial matters, and if it is agreed in principle that you will be divorced, might it not be sensible to try and speak to him direct about your concerns over costs and to try and reach an agreement that he will co-operate promptly and fully in the process so as to reduce both of your costs?
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Date: 25 Nov 2000
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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I have been with my partner for 2 years and we now have a new baby. Our problem is that we can no longer afford to pay my partners ex wifes mortgage. They have a separation agreement that was drawn up by solicitors but has never been filed with the courts we have been living by this for the last 3 years. Her situation is still the same but our has changed, my partner was single at the time of the agreement. There is enough equity in the house for her to buy another with a small mortgage which will not cost her any more than her current contribution but will release my partner from the mortgage. The ex wife is saying that if we breach the separation agreement she will want everthing changed and will want more equity from the house more pension etc. We also pay maintenance for her 2 children.
My other question is what right does she have to see my finances, if it goes to court will I ahve to reveal my savings etc and if so what bearing will it have on the decision. My savings, which we have pretty much been living on are what i have left from my divorce settlement does this have any bearing on the situation and what would I have to reveal to the courts, i feel my finacial situation is no business of hers. Also we use my credit card, would i have to show my statements? I have no income at present as the baby is only a few months old. We are happy to continue with the maintenance and other things in the separation agreement we just can afford the mortgage, we are still happy to provide her with a home it will just need to be a bit smaller. How will the courts view this? Our outgoings are £400 a month over our incomings, these figures have been seen by a solicitor who says they are reasonable.
Thanks for any advice you can give
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I really need to see the Separation Agreement and then advise properly about the consequences of changing it's terms. Generally the Courts view the first wife and children as a priority, although they must have regard to all the circumstances of the case so the new baby will have a minimal impact if the Court had to decide the matrimonial finances. If the agreement was prepared by solicitors on the basis of proper discloure of all assets it may prove difficult to resile from it. The Courts have only limited powers in relation to maintenance and your partner maybe be contractually obliged to pay the mortgage. It is in the circumstances essential that you take formal advice on all these issues quickly as you cannot continually rely on your savings. Your finances are relevant as far as your contribution to your household expense. Generally you will not have to disclose your documents. |
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Date: 23 Nov 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
At present I am living with my parents after leaving my wife some 8 weeks ago after 15 years of marriage. Before I left, we sat down and agreed verbally that I would pay half the mortgage and associated costs (life assurance, etc) as well as £280 a month for the children (aged 13 and 10)until the house was sold. I take home £1000 a month and am paying out over half of this to support the kids and keep a roof over their heads, which is very hard but I feel I owe it to them. My wife works 2 days a week and brings home £500 a month (with overtime £800), receives £100 a month family allowance, plus what I pay her. adding up to £1100 a month approximately. I on the other hand have £450 a month to feed myself, pay rent to my parents and get to work and back by local transport. What I want to ask is: Is there any way that i can get financial help? Can I take the family allowance into consideration when paying for the kids? My wife has, since we split, been as awkward as possible in relation to my parents and I seeing my children, whilst allowing her side of the family complete access. Is there a court order that I can obtain that would allow me to decide who sees my children?
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So far as financial matters are concerned you need to re think the agreement you have reached. Clearly you cannot continue indefinitely paying for what you are.
I cannot comment exactly on the case as I am not aware of your wife's circumstances, ie, is she able to work longer hours etc.
Perhaps you should both consider going to mediation to talk about not only financial matters but also contact.
It is open to you to apply to the Court for a contact order and that way the Court will define when you can see the children. In turn your parents can also apply but they must seek leave before doing so as they do now have what is known as parental responsibility. Contact is the most important issue and if it is problematic then that is not fair on the children because they will pick up on the dispute between the two if you.
If problems cannot be resolved by agreement then only the Court can assist. You do not need divorce proceedings for this you can make a free standing application under the Children Act.
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Date: 21 Nov 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife told me in April 2000 that she is having an affair with My best friend (father of 3)since more than one year. Since then we still live in one flat for two reasons. one is the financial aspect (because she only started working 4 month ago for half a day her salary is to low to finance her self)and the second more important reason for me was to get the children get used to the fact that their parents are not a couple anymore.
Now after 7 month we have more and more disagreements and I think this flatshare is going to an end.
Is there any way to find out what the legal and financial issues are without paying something like £150 an hour for a solicitor....just as an advice i would be thankful if you could give me the basic figures and issues.
How much i will have to pay her?
How much for the children (4 and 7)?
How often will i be able to see my daughters?
What things i should not promise?
What things should i request?
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You will need to consider the following matters.
How will she re-house herself and the children?
Will she be able to work and afford child care?
Will she be able to get a mortgage on her salary?
Can you afford to rehouse yourself in a property that is big enough for the children to visit you and stay overnight?
Are there other assets that can be offset such as savings.
Does your wife have any pension scheme? Will she want to claim part of your current pension value?
You will have to pay maintenance for the children either by way of a voluntary payment or Child Support. A rough way of working this out is to calculate your living expenses and what ever is left divide by 3. This will give you a rough figure for child support. For more detailed advice see Mike Smith details (DLS) in the Expert section.
How often you see your girls is upto the both of you,if they are of school age then perhaps every other weekend they stay over the weekend, with one or night in the week and a daytime visit the alternate weekend when they do not stay. Half the school holidays should be a good starting point for holiday contact. You will also need to sort out Christmas and birthdays.
I suggest you consider mediation before you go any further and you can find your local mediation service from the link on our home page. |
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Date: 18 Nov 2000
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
hello
My ex is taking me to court, and the first hearing is in January. Could you please explain to me when I will be liable to pay his costs; for example, if he offers me £20,000.00, and I refuse this, then later it is stated that I should receive £22,000.00, will I have to pay his costs? could you please give an example similar to the above, of when I will and won't have to pay his costs. Also, could I make him an offer in the same way, and would the same apply re the costs if he refuses? Many many thanks
from
Clare.
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You are talking about what is called a Calderbank offer.In your scenario it is likely that the Court will award you costs. If you were to receive the same as or less than £20,000.00 you are likely to pay his costs.Either party can make offers at any stage but they should be in writing and marked 'without prejudice save as to costs.' Costs remain in the discretion of the Court but there is a presumption that if you fail to beat the other party's offer you will pay costs. The nature of some of the orders made by the Court are such that sometimes it is impossible to value it in just monetary terms, as are some of the offers being made and therefore the Court will consider which of the offers is more advantageous for the respective parties before deciding who should pay costs. I hope this helps.
Frank |
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Date: 17 Nov 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am separating from my partner who is father of my two babies; Am I entitled to any share of the house if it is solely in his name? What financial responsibilites lie with him?
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You do not say if you are married. I will presume you are not.
There are two ways in which you can claim a share of the equity or to have the house transferred to you.
The first depends on your contribution to the property.
If you have helped by the mortgage and any payment vehicle such as endowments or have contributed by decorating and improving the property you can claim under the Trusts for Land and Appointment of Trustees Act 1997 (section 14)for the property to be sold and an order made for a sum to be paid to you.
You can also apply for a property transfer order under Schedule 2 of the Children Act. This would allow the court to make an order transferring all or part of the property to you for your children. The order may last until your children are of school leaving age or if you remarry or cohabit. You may then be ordered to sell and give him his share.
These are rough guidelines to the law.
You should see a Solicitor asap for more detailed advice. |
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Date: 13 Nov 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My parents have now been seperated for 15 years and have now decided to get divorced. My father left with his girlfriend and took a loan against the house to set up his new business with her - this loan remains outstanding (it is about a quarter of the value of the house)- he is paying it off with an endowment mortgage - the business failed but he is keeping up repayments - will be paid in 7 years. My mother didn't receive any maintence from my father - (he only paid half my brothers school fees). My mother has resided in the house for the last 30 years and has paid for all up keep and refurbishments of it - although her name is not on the mortgage. My mother wants a clean break and would settle for the house and wants to leave it to her children in her will. My father will not sign the house over until the loan is paid off (7 yrs) and has stipulated in a letter that should my mother die in that time - the house will go in it's entirety to him and his girlfriend, which has obviously not gone down too well. This "divorce" which we were all hoping would be amicable is turning out to be pretty painful, please can you help me to advise my mother on the following:
1.Is she entitled to the house (she gave up work to bring her children up)?
2. Is she entitled to any of my fathers pension - which will be quite healthy?
3. Is she entitled to any of the excess monies my dad will receive when the endowment payments are complete in 7 years time?
Many thanks in advance for your advice.
Kind Regards,
Vanessa Draper
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The Court will look at various factors such as contribution, need, income and capital requirements and in some cases conduct of the parties.
If your mother does not Petition for divorce until after 1st December she can apply under the new pension Splitting legislation.This will allow the court to share the Pension between them and create a separate fund for your mother.
If your father applies before that date she is best advised to defend and cross petition after December 1st.
If she has already begun the divorce she can apply for pension earmarking which would give her a lump sum and monthly payments when your father retires.
Your mother has an extremely good claim and should seek independent legal advice as quickly as possible to avoid your father trying to bamboozle her into agreeing something less than she is entitled to.
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Date: 10 Nov 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My wife claims that she has filed for divorce under 'unreasonable behaviour'. she is trying hard to grab half of my pension (still 20 years off!) After the money that she has had out of me so far I am looking for a way to hang on to what I have earned. She has worked all her married life but claims that she never bothered to make pension arrangements because she would live off mine. The pension is very modest and if it is divided between 2 of us then it will be worth next to nothing. What can I do?
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Deciding on whether your wife can make a claim on your pension depends on a lot of other factors. These include, age, length of marriage, whether |
