Ask the Experts

Property

Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My solicitor mentioned a Mesher Order (I think that's what it's called) whereby I and our son stay in our marital home and my husband retains an interest in the home which he will get when the house is sold, with certain triggers as to the sale. When I mentioned this to my husband, he was outraged that he would have to wait 5-8 years for capital. He said if I went for this option, he'd be allowed to move back in. I simply couldn't bear this. Staying here may be the best option for our 13 year old son as with a 40/60 split, I couldn't afford to buy outright a much smaller but fairly comparable family home for him. I only work p/t and earn �700 pcm. Please advise - feeling desperate.
A.	If the court order a mesher order, you husband would not be able to move back in. The property would be transferred to you with a charge to your husband, so the property would be owned by you bit he would have a mortgage which would take effect when you either remarry, live with someone or when the youngest child leaves school. You would either have to remortgage then or sell.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Hi My husband and I divorced 2 years ago. I left the family home with our children. We were still very much in love, so my ex moved into my rented accommodation with us. We have now since all moved back to the family home. I received my divorce settlement in respect of the property. My question is where do we stand now with regards to me living back in the family home again.My ex husband is paying the mortage and all the bills and I buy the food/clothes etc.
A.	Jo If you are divorced then you will be treated as a girlfriend would be if the house is now in his sole name. If you were to separate again then you may be entitled to some money by virtue of any contribution you make to the property.
Answered by: Kate Covell, Lawyer
Q.	i have been married for 6 years and recently got my nisi. my husband did not contribute to any payment (deposit, mortgage, bills during these years) he now wants 50% of this property and of a property that is solely in my name (bought b4 marriage) can he claim for this? and what if i were to transfer my sole property for free in my parents name before the absolute comes thru. would he still be entitled to a share even if i don't gain monetarily from my parents by doing this? can he also refuse 2 let me buy out his share of our joint property? would things b in my favour if i continue to make sole mortgage repayments / bills or should i stop? he refuses to contribute in any way. PLEASE PLEASE help. im so confused. thanx
A.	Sorry you are feeling under pressure from your husband. The courts at the moment seem to be saying that each party to a marriage should take out what they bring in and then any profit is shared 50/50. This means that you should be able to keep the house that you already owned in your own name but as far as the property is concerned in your joint names, it is likely that he will be entitled to a share of this. If you wish to buy out your husband's share of your joint property and he refuses to deal with it, then you must apply to the Court for ancillary relief. The Court can then deal with the whole situation between you and make an order. You may find that your husband will agree an order at this point rather than fighting and spending thousands of pounds on lawyers fees. In the meantime, if you transfer your other property in to your parents names, this will not make any difference whatsoever to the proceedings. Parties have notoriously attempted to deal with their assets in this way over the years and these types of transactions are always set aside by Judges dealing with applications for ancillary relief by the other spouse. It is in your interest to get matters dealt with quickly since the lump sum you have to pay to your husband will depend upon the valuation at the time the order is made, not at the time of your separation. You must seek independent legal advice as a matter of urgency. Good luck
Answered by: Kate Covell, Lawyer
Q.	Hi My husband and I are separated. He left 2.5 years ago. Mortgage is in his name. He has paid no maintenance to me for 23 months of the 30 months we have been apart. We have two children ,7 who live with me in themarital home. Since Nov 06 CSA have taken 310 pounds from monthly. Since Nov I have been paying the mortgage . He was supposed to pay the mortgage each month but having received mail from the Mortgage company and now the visit of a baliff I find that he has not paid the mtg for the past year. We are due to go to court on the 18th May but the baliff said that they would not contact me as my name is not on the mtg. They would only inform him. Where do I stand on this . The mtg company will not talk to me . My ex will not do anything to sort out this mess. What happens if the baliffs come back with a repossesion order . I am out of a home . Desperate for swift advice. Lisa
A.	You should apply to the Court urgently for maintenance pending suit (if you are going to issue a divorce petition) or for an order for maintenance since he has failed to maintain you (if you do not intend issuing divorce proceedings at the present time). If he then does not pay the maintenance you can get an attachment of earnings order so that his employer pays you directly. You must seek urgent advice from a laywer specialising in family law so that they can register the appropriate charge at the Land Registry registering your Matrimonial Homes Act rights and they should then be able to contact the mortgage company to try and help sort matters out for you.
Answered by: Kate Covell, Lawyer
Q.	Myself and my wife purchased our house for £79000 just over 2 years ago we had to use Co-ownership so we only own 50% of the property. The house is now valued at £140,000. Myself and my wife are now getting divorced and she told me that the house is hers as her mum paid the deposit of £7000 as a gift for a wedding present. I have been paying the mortgage since the house was purchased the house is in both our names, My wife has just started paying half of all bills about 4 months ago. There are 2 children involved but they are my wife's from a previous relationship. Please could you tell me where I stand when we do get divorced ( at the moment we are still living together as neither one of us can afford to move out ) will the house have to be sold and will it be split 50% neither of us would have the money to buy the other one out. Thankyou fro any help your able to give
A.	It is unlikely that the Court would order a sale whilst the children are minors. What should happen is that each party keeps what they brought in to the marriage (this usually includes gifts from family) and then the balance is split 50/50. If she cannot afford to purchase your share now you must consider what she can afford to pay and vice versa. It may not be worth fighting in Court about how much you should have if the difference is quite small. Have you thought about attending with a mediator to see if you can reach an amicable agreement about the split of the assets? Remember all assets, including any pensions either of you have, should be taken in to account prior to splitting. An alternative may be to leave your wife in the house with the children and agree that she pays you a small sum now to enable you to rehouse yourself then the balance of your share upon the youngest child reaching the end of his or her minority, upon her remarriage, death or cohabitation. This should preserve your interest in the assets and leave a home for your wife and the children.
Answered by: Kate Covell, Lawyer
Q.	I am currently divorcing my ex partner and i live in rented accomodation with our children as he still resides in the jointly owned marital home. However, he plans to move abroad in the next couple of weeks and says he will sign the house over to me. How can i ensure that if i give up my current tenancy and move to the marital home, that he cannot change his mind and demand the house back? I will have to take over the mortgage payments so i can't afford to pay rent on my current home and the mortgage too so I will have to move back. Will the mortgage provider agree to this? I am currently a full time student and do not work at the moment.
A.	You ought to apply to the Court for ancillary relief within the divorce proceedings. If an agreement has been reached as to what is to happen to the house you jointly own then you ought to be able to apply for an Order by consent for the house to be signed over to you now with you giving an undertaking to the Court to discharge the mortgage payments and have the mortgage transferred in to your sole name when you are able to do so. Make sure that you obtain a financial clean break if appropriate to do so to ensure that your husband does not have a claim against the house in the future. Unfortunately there is no way to ensure that he will not change his mind until an Order has been sealed and even then only once you are finally divorced.
Answered by: Kate Covell, Lawyer
Q.	It seems that my 12 year marriage will soon be coming to an end. My question relates to our home, which we own jointly and contribute equally to the mortgage and bills etc. Our home is worth approx. 105K. We owe approx. 65K on the mortgage. So after the house is sold we would each get (for ease of numbers) around 20K. I want to stay in the property, remortgage for 85K and pay 20K to my husband as his share of the profit. He insists that he will not allow me to do this - that if he can't have the house (as his earnings wouldn't enable him to remortgage for 85K) then I'm not, and he will force me to sell and both of us then have to start house-hunting etc. My earnings would allow me to get a mortgage for 85K, but he won't let me buy him out just out of sheer spite. (There is no-one else involved in the breakdown of our marriage.) So, my questions are: 1. Can I be forced to sell; 2. Can he refuse to let me buy him out without good reason; 3. If the property was to be put on the market, could I apply to buy it in my own rights, i.e. apply for an 85K mortgage and use the 20K of what would have been my share of the profit as the "deposit". Could this be something that is determined by a court or even perhaps our current mortgage lender? I need help with as soon as possible. Thank you.
A.	You can apply to the Court within either Judicial Separation or Divorce Proceedings for a property adjustment order. You cannot apply to the Court for this unless you issue those types of proceedings but your husband could apply for an Order for sale. It is important that you get proceedings for divorce or judicial separation under way so that the Court can consider all of the circumstances. In my view it is likely that the Court would make an Order for a transfer to you on the basis that you pay him £20,000 whether he likes it or not within proceedings for ancillary relief. This is a costly exercise and you should try and reach agreement with him if at all possible. If he will not agree then you will have to make the application to the Court on Form A. The Court would also consider any other assets either of you have including any pensions too. If he refuses to sign the Transfer Deed the Court can sign on his behalf. The Courts are well used to making Orders people do not like and eventually they learn to live with it.
Answered by: Kate Covell, Lawyer
Q.	I am in the process of separating from my partner and want to know what my entitlement is to equity on the property. We have a joint mortgage of £197k. Property is worth approx £625k. He put more equity into the property when we bouth it (purchase price £485k in July 2004) but my equity (£100k) was used to totally refurb and furnish the house. We both earn the same amount (£50k per annum each) and I have two children from a previous marriage, aged 15 and 12. Assuming that we get £625k for the house, once the mortgage is repaid that leaves just over £420k that I was suggesting we split 260k to him and 160k to me. He currently pays the mortgage (£900 per month) and I pay everything else - all bills and food/drink. My household outgoings are approx £1,400 per month. Is my suggested split of equity fair bearing in mind I have to buy a house for me and two children, he just has to by somewhere for himself?
A.	You do not say whether or not you are married. If you are unmarried with children under the age of 18 years the Court would not order a sale of the property until the youngest child reaches 18 years. If there is no trust deed or anything else usually property is purchased by unmarried persons as beneficial joint tenants in equal shares. This means that upon sale it would be split equally between you. Very few unmarried people realise this. The Court would look at how the property was purchased if an argument arises. The law is set out very clearly about this. If you are married you ought each to take out what you put in to the marriage and then the rest should be divided equally. You should of course, when considering this,m ake sure that you have sufficient funds (with the assistance of a mortgage) to enable you to purchase a home for yourself and your children. You ought to seek advice from a lawyer qualified in matrimonial law to assist you further, taking with you all of the relevant information.
Answered by: Kate Covell, Lawyer
Q.	My husband and I have been separated for six months. We have a son who is six years old. My husband earns £70 000.00 gross pa. We have property to the value of £750 000.00. The equity value for all three properties is £200 000.00. My son and I live in the family home at the moment where my husband is paying all the expenses. The other two properties are rented out. He is living in rented accommodation. I am not working presently but usually work on a very part-time bases doing sales contracts which amount to £5000.00-£7000.00 pa. My son and I will be moving to South Africa shortly and my husband will be moving back into our residential property. When going to SA with our son, how much can we expect in child maintainence(percentage? or amount?) and how much can I expect in spousal maintainmence. I don't know what the cost of living in SA is going to be exactly but only have a rough guess. Can we get a solicitor to put an amount in writing before we go?
A.	You ought to expect approximately 15% of your husband's income net of tax and national insurance contributions for maintenance for your son whilst he is a minor. As far as spousal maintenance is concerned, this will depend upon many different factors and how much you might be expected to earn when you move to South Africa amongst other things. You ought to get all financial issues settled before you move if you can do so including capital, income and pension issues. A mediator can help you both settle things amicably and then a lawyer can set out the agreement in a Separation Agreement for you.
Answered by: Kate Covell, Lawyer
Q.	I have been divorced for over a year. My ex lives in the former matrimonial home with my 2 children and her 20yr old daughter from a previous marriage. The house is in my sole name. We agreed sometime ago to sell it, which we now have done. Contracts have not been exchanged because she now refuses to move out. The sale will no doubt fall through as a result. Is there anyway I can get her out? How much is it likely to cost? How fast can it be done? I will gladly look after the children. For your info, we seperated 2 yrs ago after she had had several affairs and moved her boyfriend into my home using blackmail to enforce me to leave. This was reported to police who chose not to act. She also along with her boyfriend stole approx £50,000 from me for which HE is curently on Crown Court bail. I am at my witts end, I want to sell the house and get rid off her from my life but find I have little support in the legal system as a male victim.
A.	If you are divorced from your former wife and the property is in your sole name she has no right to reside in it. You can apply to the Court for an Occupation Order if you want to move back in which would have the effect of ousting her from the house. Once you have the occupation order if she is still in residence you could apply to have her removed by force. There are also other remedies available under the Rent Acts but you would need to see a specialist property lawyer about this. You should report the theft of the money to the Police and insist that they take action against her as well as her partner or at least ask for a full explanation as to why they have not done anything as far as she is concerned. It sounds as if you need to make an application for full ancillary relief to the Court as quickly as possible. This will have the effect of forcing your ex wife to give full financial disclosure to the Court to enable the Court to make an Order as to how the assets should be divided. If you have already reached an agreement then you could get a draft Order before the Court (ensure you have the clean break clauses inserted). I hope the above helps a little. Kate
Answered by: Kate Covell, Lawyer
Q.	Until 18 months ago my wife and I were in a business partnership. She didn't actively work in the business other than doing the quarterly accounts but was supportive in every way. We closed the business and I formed a limited company with two business colleagues. We are now separating and I understand and accept that the assets of the business will be taken into account as part of the separation agreement. My question is: does my wife have any claim though on my future earnings from the business or any proceeds which might come from any furture sale of the business?
A.	It would be important to obtain a full financial clean break within divorce proceedings to ensure that your wife has no claim over your assets or income at any stage in the future. If this is not dealt with she will be able to make a claim unless she is the Respondent to the divorce proceedings and she has remarried. I would suggest that you seek advice from a lawyer dealing with family law as soon as possible to ensure your financial affairs are dealt with by way of a clean break.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I lived with my ex partner for 8 years ( not married) and split up after she had an affair with my friend. The property was in negative equity at the time and she has not paid anything towards the mortgage, endownment maintenance etc since she left. I could not persue any payments from her as she left no forwarding address. There is now approximately £25,000 pound in equity on the house however I calculate that she owes approx £10,000 in payments (i.e 50% mortgage payments, 50% endownment payments & 50 % maintenace payments.) I have recently gotten in contact with here and offered her £3000 which I think is a fair over as she would be entitled to £12,500 equity less the missed payments of £10,000. I am right in thinking that she is liable to these payments. There are no children involved and she simply abandoned the property and never returned or contacted me with regards to the property. Where do I stand?
A.	If the property is in joint names then you have to give her 50% of the equity. You have an argument for discounting the missed payments however she could counter argue that this can be offset against you having exclusive use of the property (ie a nominal rent). If she accepts the £3,000 all well and good as taking it to court would cost her at least 3-4k and there is no guarantee she would get all or any of her costs back.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Married for almost 7 years & no children. Wife had 3 previous children 16, 18, 21 now, maintenance paid by ex-husband for them until they finish full time education. Wife moved into my house worth about £300K then, now worth £1,000,000 I have always paid mortgage and wife has not worked since marriage in fact she went back to college as a mature student to obtain degree - just finished. I have always paid all the bills including mortgage as above. We have just separated and may not get back together. Is this a short marriage and as we have no children if we do divorce would my wife be entitled to 50 % of the equity in the house which is almost 100% of its value even though it is/was my house? or would she only be entitled to 50% of the increased equity since the marriage? Thanks Mark
A.	Your wife in my opinion would be likley to receive 50% of the equity , there may be an argument that there should be some discount for the fact you owned the property before the marriage, however as you have been together for 7 years this may not apply as it could go against the principle of equality which the courts now follow. I suggest you instruct a Solicitor.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am contemplating getting remarried and my friends seem to think that he is only after my money. I have a house worth around £450k (mortgage free) and savings of £100k which have come from my previous marriage. Along with a wedding, we are planning to knock my house down and rebuild, he will pay the mortgage and as I supply the plot. If he were to divorce me after a couple of years, would he be entitled to half of the assets that I have prior to the marriage? I have heard that after a 'short' marriage each partner leaves with what they brought to the marriage plus half of any assets built up within the marriage. Many thanks for your advice
A.	The rule of thumb is that in short marriages the parties leave with what they brought in and then divide any accrued assets but each case is individual. I would advise considering getting a pre nuptial agreement drawn up which will show the court that this is your intention should the marriage end in divorce.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	Hi There, My husband had an affair for 6 months which he says is now over. I took him back 6 weeks ago, but he said he no longer loved me. So now we are living in the same house - but it's on the market. We have two lovely kids (aged under 5), which I'll be taking. But I'm sure he's still having an affair. I have recently been made redundant. He earns £21,000 and pays all the bills. He has always paid the mortgage out of his wages. I want to know if he is entitled to getting anything from the sale of the house when we divorce. He has promised generous maintence for the children. Many thanks
A.	It depends on whether you would be able to raise a mortgage yourself and what the sale proceeds are. If you are not able to afford to purchase a home without having all of the proceeds then it is likely the court would give them to you subject to him having a charge on your new property for a percentage of the equity so that if you remarried, sell or your youngest leaves school he would get his share then when you would have to either pay him off or sell the new house. I suggest you attend mediation or get legal advice before agreeing anything with him
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I was with my husband for 7 years before we married, during which time we agreed we would have children together one day. 7 months after we married we agreed that I would come off the pill and we would start trying for a baby - my husband never slept with me again. I talked to him about it several times and he said he was just stressed but then he started to sit at the computer every night with a drink and a joint (cannabis) and not come to bed until I was asleep. After 11 months of this I had a one night stand with someone, a week later I told my husband I didn't want to be with him anymore (18 months after we married), then the following month he found out I had a one night stand. My question is although he obviously has grounds for divorce do I, on the grounds of unreasonable behaviour. After we separated he told me he was scared I wouldn't want to have kids with him because of something that happened in his past, and that's why he ignored me for so long, but by then I'd fallen out of love with him. We've been separated for exactly a year now and he hasn't started divorced proceedings but I want to move on with my life. Also does he have any claim on my house which I owned for 15 years before we got married? He lived there virtually the whole time we were together but never contributed to a single bill, just painted a few walls. I own the property outright so there is no mortgage, but he didn't contribute financially in any way to the upkeeping of the house. Many thanks for any advice you can give me. Kim
A.	In relation to the divorce, yes you can divorce him on the grounds of his behaviour as they were the reason the marriage broke down, not your one night stand. he would find it very difficult and expensive to defend as legal aid is not avaliable to defend a divorce in England and Wales. As for the finances i am afraid that because you have had long relationship, although a short marriage, the court would not allow him to leave with nothing. On that front I suggest you make him a lump sum offer so a clean break order can be filed. Divorce-Online can help you achieve your divorce with a range of services as set out below depending on what level of support you require. *Gold Service Our respected Self Help "Gold" Divorce Service gives you a professionally pre-completed suite of documents, standard letters and a step by step guide to procedure as well as free help and support by telephone or e-mail until you are divorced from legally trained staff in plain English for £90.00. We do the legal work, you do the filing. We return all calls the same day. This means we are here to assist you throughout the process from answering your queries and court related questions to editing or amending your documents all for one fixed fee. With Divorce-Online, the process takes on average 3 months to conclude. In addition to the fee for our service there are court fees payable directly to your local court of: £210.00 at the start of the divorce £30.00 at the end of the divorce. For more information and to order this service goto: www.divorce-online.co.uk/divorce.asp * Platinum Service if you have agreed your finances then you may wish to consider our platinum service which deals with both the divorce (gold) and the financial order and costs £170.00 http://www.divorce-online.co.uk/services/Legalcentre/divorceexlp.htm *Diamond Services We have also recently launched a range of Managed Diamond Services starting at £160.00 where in addition to preparing all the required paperwork for you we also do all the filing and administration for those who want a completely managed service. All documents are either filed at our friendly local county court or a court of your choice and we deal with all the correspondence, queries and chasing up for you to ensure you get a quick, hassle free service. http://www.divorce-online.co.uk/services/Legalcentre/Index.asp Please do not hesitate to telephone us if you need further advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My separation has been a difficult one, moving out of the home we shared about 10 months ago and then moving back in because of high costs where i lived. This had been an amicable separtation for about a year but now it's beginning to have dire consequences on my life, stress being one of them. My ex thinks i have no entitlement to the house that we live in and making my life living under the same room incredibly hard. We both have our names on the deeds and he wants to keep the house but not sure if i am entitled to half of the property. We have been married since 1988 and no dependants. We have lived separately as man and wife for at least three years now but still living together. Money being the problem I can not leave my job and go back to Scotland, so I really need to get the ball rolling for a divorce. Financially this is worrying for myself. I know i need a solicitor and £85 per session is very steep for me and these are quotes from the local solicitors. I am not entitled to any legal help as i earn too much, I think it was £20 over. I will have to go into debt to cover these fees but this I think this is the only way I can start a new life. Please help in anyway that you can, to give me confidence to start this procedure. Yours sincerly Karen O'Brien
A.	Karen You are entitled to a share of the property and if you have been married since 1988, my view is that you are entitled to 50% of all the assets, house, pensions, everything. If he will not sit down and agree with you a final settlement then you have no choice but to press on with Solicitors. However that said, you can get them to deal with the financial side and get someone like Divorce-Online to do the actual divorce part which will save you a huge amount of money.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	my partner of 4 years has decided to leave me. Wehave a joint mortgage but not married. The house was originally mine, we then remortgaged and put into joint names. I now cannot afford the bills and mortgage on my own and frightened i'll lose my home. He says that he dosn't want any money from the house, but i still have to manage with 2 teenage children. what are my legal rights and where do i go from here financially.
A.	You are both jointly and severally liable for the mortgage payments, so until you have sorted it out he should in theory continue paying his half of the mortgage. Also because you have children, you can apply under the Children Act for him to make payments towards the house but this will only last until they finish education, even if they are not his children. I suggest you take some legal advice quickly.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Hi, my wife and I were married for 6 months before we moved into a new home (joint morgage, although i pay the mortgage and deposit) we split up after 1 year of living there (she went to live with the lodger). At the time i spoke to the morgage company and asked if i could take her off the mortgage (she left with about £4000, car and £300 pound a month for 6 months so she could set up by her self). I am tied into the morgage on a variable rate for 5 years with a 7500 penilty fee + interest. The mortgage company have now agreed that i can afford the property (4 years on) but my ex is now wanting a cash lump sum of £25000 for letting me have the house (4 years ago we were in negative equity of about £20000) Is she allowed to do this as i have paid for all the house over this time.
A.	In a short marriage, the goldren rule is the parties tend to leave with what they went in with and any equity is based on contribution to the asset rather than on a 50% split. It is my view that your wife would not be able to persuade a court to grant her that much money as a settlement.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Have a flexible mortgage which we can under pay over pay take holidays etc. If spouse refuses to continue to pay mortgage until house is sorted would a court look unfavarourably if i took break from mortgage only repaying interest therefore not increasing the equity. i wish to stay in the house with my two children (three bed semi) and have offered ex max i can borrow 3.5 times salary taking into account outstanding debt as of today.
A.	No, this is a sensible way for you to proceed in order to keep the mortgage being paid and a roof over your children's head and in my view would be seen as such by the court.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My Wife and I are contemplating divorce on the grounds of her committing Adultery. My wife does not work and wants to find a place to live with her new partner in our current town. Both she and her partner cannot afford to rent a house near our children's schools. They have asked if they can buy my share of our house. Is this possible? - If so, what would be involved?
A.	Shaun The divorce part is very straight forward and indeed you do not have to actually name the third party and for the purposes of speed it is best not to. As for the house, they will have to make you an offer as to what she will pay you to transfer your title to her. Then she will have to obtain a mortgage to raise the additional funds to pay you. This can either be by way of a remortgage or a further advance from your existing lender. In the meantime, you will need to have a court order drawn up ordering the transfer and payment to you within a defined period (usually 56 days of the order). The order will then go on to dismiss all potential matrimonial claims between you, so once the transfer has taken place, neither party can then go back to court to ask for further capital (property, cash, savings, pensions etc) or income (maintenance) We can deal with the divorce and financial order for you for £170.00 with our Platinum divorce package. http://www.divorce-online.co.uk/services/Legalcentre/divorceexlp.htm She will have to seperatley instruct a conveyancer to deal with the transfer of the deeds, the payment to you and the remortgage or further advance. She will also have to bear this cost.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I are seperated, athough we are still living in the same house, she insist she will not leave until she has half the house, althought we also own a public house, which is being sold, am i intitled to half of the buisness, if she is intitled to half the house
A.	Steven Using general principles, you are both entitled to equal shares of all the capital assets of the marriage, which would include any property, business assets, pensions etc. It would appear that these assets need to be realised or the equivalent raised in order to buy her out. Divorce-Online can help you with your divorce using our market leading Divorce LegalPac service which costs just £90.00. The Divorce Service gives you a professionally completed suite of documents, a step by step guide to procedure and free help and support by telephone or e-mail until you are divorced from legally trained staff in plain English. This means we are here to assist you throughout the process from answering simple queries and court related questions to editing or amending your documents all for one fixed fee. With Divorce-Online, the process takes on average 3 months to conclude. In addition to the fee for our service there are court fees payable directly to your local court of: £180.00 at the start of the divorce £30.00 at the end of the divorce. For more information and to order this service goto: www.divorce-online.co.uk/divorce.asp If you have agreed your finances with your spouse then you will need to obtain a court order to ensure that there can be no further claims in the future. This is called a Consent Order and we can also draft this documentation for you to ensure that your finances are settled with the divorce. This order is the only way to record your settlement and to ensure there can be no further claims made. The Order is normally filed between Decree Nisi and Decree Absolute so you may need to order the service as soon as possible to ensure you can receive your order in plenty of time. We have therefore developed the Divorce Extra package to cover both the divorce and finances. This costs £170.00 To order this Goto: http://www.divorce-online.co.uk/redirect.asp?goto=services/Legalcentre/divorceexlp.htm Even if you are in dispute about your finances or children arrangements we can still deal with the divorce itself for you, leaving the solicitor to deal with the finances etc. This will save you hundreds of pounds in legal fees. We can liase with your Solicitor if needs be. Also please note that legal aid is not available for the divorce itself unless you are on a very low income or income support.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	split for 3 yrs after 17yrs of marraige.one 9yr old son of the marraige who lives with me.hubby owns nothing, on paper,lives with parents,works for them for "no pay"he also has no living expenses.son and i live in jointly owned family home. can hubby on divorce force me to sell up? will we get 50/50? we have had no maintainance or anything else from him for 3yrs and i have maintained the property to a high standard. i work p/time for minimum wage, topped up with wft credit and child tax credit. please help
A.	Wendy The court have to look at a number of factors but will always start from a 50/50 position. As you have a young child and only work part time, they will not force a sale of the property until you cohabit, remarry or your child finishes school. At that point you would have to sell to release his share. You may also be awarded more of the equity as your capital needs may be considered larger than his. This is called a mesher order and is quite common. It may be worth while offering him say a 70/30 split with the property being transferred into your sole name and him having a charge for £amount that his share is worth today.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have two daughters, one at university, the other is in the lower sixth at school, i.e. has another year to go. Will I be able to stay in the house until she has (a) finished her education at school and/or (b) finished at uni.
A.	It depends what any court order or separation agreement says but it is usually until they finish full time education which is 6th form or college. However if the order says education then this will include University.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Hi, my case i think is quite a complex one. My husband is currently in prison for abusing our daughter. I have commenced divorce proceedings. He is demanding 50% of the equity in our house, i have been paying the mortgage for the past 2 years on my own, obviously without any help from him. We have been married 13 years. Can he ask for this much, as i feel if he hadn't committed this crime i would not be in this situation in the first place. I also have 2 young sons. I would appreciate your help in this matter. Thank you.
A.	The fact that you are continuing to look after the children in the marital home would mean it is highly unlikely that the court would want the property to be sold. Also the fact that he has not contributed to the household payments and mortgage for 2 years would mean he is unlikely to achieve a 50% split or anywhere near it. The likely order would be that you can remain in the home until you marry or cohabit or until your youngest child leaves education or reaches 18 whichever is the later event. I suggest you contact a Solicitor asap. You may be entitled to legal funding (legal aid).
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My mother and father divorced in 1997. Over the past 7 years he has stopped and started proceedings between my mother's and his respective solicitors claiming a share in the price of the family home which my mother and myself (I am her only child and 26 years old) still occupy. The mortgage was a joint one when entered into in 1978. My question is whether or not my father's 3 children from a previous marriage would also have a claim on his share of the family home in the event of something his dying - ie would they be able to demand a lump sum from my mother or force a sale. This is a particularly important issue to clarify for myself as if correct it would heap injustice onto an already outrageous set of circumstances in which my mother was forced to accept divorce for her unreasonable behaviour (my father was a drunk and an adulterer) and now faces the prospect of paying out on a house to which she was the only one who contributed a penny of the mortage.
A.	If your father is still a co owner of the property and the property is owned as tenants in common as opposed to joint tenants, then yes if he has made a will leaving his estate to them, the estate is entitled to ask for the house to be sold in order to obtain the value of his share. The question of the house needs to be sorted out and the only way this is going to be done is by your mother bringing proceedings for ancillary relief so the court can decide once and for all what is going to happen to it. The likely hood is that she will get the majority of the equity as he has not contributed to the property for some time.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I was married to my husband for 8 months after living together for 2 years previously. I owned a house which was purchased by my family in which I was paying them back as and when could afford. I divorced my husband recently after being separated for 2 years and all has gone through successfully, I tried to resolve finances by my ex husband was uninterested. Now he is trying to make a claim on the property to take me to court for a 50/50 split on the rise in the value of the property from he first moved in (5 years ago, only actually lived there half of that time, I have been living there on my own, past 2.5 years). Is it likely that a court of law will grant him this money? I am reluctant to have to get a mortgage on my own property to pay him off.
A.	Rachael It is very unlikey that he would get 50% of the rise in value as he has not made contribution to that rise in the equity. however do you want to risk going through court proceedings, hiring lawyers etc when you may not get your costs back. My advice is to make him an offer and get him off your back once and for all.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Having been separated for nearly 2 years. We jointly own a property which we have extended, however although this work is nearly finished, the final building regulations have not yet been signed of as my husband seems to be quite happy stalling matters. I have now told him that I will be moving back in at the end of May if the house is not on the market. I moved out of the house in Aug 2003 but am continuing to pay my half of the mortgage. He now lives there with a new girlfriend who does not pay any rent, so if I have to move back in I will only pay 1/3 of the bills rather than half. That's fair isn't it? What I would like to know is can I make him sell? I was going to get a condition of sale attached that would mean we have to finish the jobs outstanding. Currently only loft insulation. I have over 80k tied up in this property and need to start my new life. I will be filing for divorce when the 2 years is up. Any advice would be appreciated.
A.	Of course you can move back in if you decide to and I think what you propose about the bills is also fair. You can ask the court to sell the property once the divorce has begun, but not before.
Answered by: Angela Riley, Partner, Laceys Solicitors
Q.	I have been married for 6 years, I have 2 children from a previous relationship boy 11, girl 9) our marraige has broken down and although we have not discussed divorce I am concerned that should anything happen to me my children would not be entitled to a share of the property. We have joint ownership how can I ensure my children do not lose their inhertitance?
A.	If you hold the property as 'beneficial joint tenants' [and most married couples do] on the death of either one of you the property will pass by survivorship, and who ever out-lives the other will own the whole property. You can also hold property jointly as 'tenants in common' and this means that you each have a distinct share that can pass under the terms of your will. You need to see a solicitor who can arrange for the way the property is held to be altered very simply, by contacting the Land Registry, and who can fully explain the implications of this.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have a shared residence order but prime carer is classed as my ex-wife.We have 3 children.She does not work but Iam on only small salary.She now lives in a council house.Question is , she has been gone from the matrimonial house over 2 half years and made no contribution to the house since then.Would she be entitled to the substantial increase in value of the property since separation and should this be put down on the form E.Under English and welsh law.
A.	The likely hood is that she would not be entitled to any increase in the value from when she left as she now has her housing needs met and you have shared residence. However she will be entitled to a payment in respect of the equity that had accrued as at the time of leaving.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife has just taken legal advice from a solicitor who claims that she can claim more than 50% of the property value, plus a sum for her on top of maintenance for our two year old - surely this isn't fair given that she committed adultery - also given that up until Sept last year she paid nothing into the mortgage account. Please help
A.	Phil The fact that she committed adultery is irrelevant I am afraid. The court would look at her needs and the intentions of the parties towards the assets. She is entitled to 50% of the matrimonial assets in any event. She may be able to claim more if she needs extra capital in order to finance the purchase of a house for her and your two year old. She may be entitled to some spouse maintenance for herself for a limited period but that depends on what her needs are and whether she is capable of working.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I'm a mother of a 5 year old child ,heading for divorce after 8 years of marriage .My hus and I purchased the house after our marriage ,but the house is in his name.I work part time and he earns 2 times more than what I earn.can i claim 50 % on our house ,because he is insisting that i move out from the house as it belongs to him.
A.	Yes you can and indeed maybe more as you have a child. The first thing you NEED to so is register a matrimonial homes act caution on the house to stop him selling it, or remortgaging the property. We can do this for you for £40.00 http://www.divorce-online.co.uk/services/legalcentre/homerightslp.htm Once you have done this, seek legal advice to get the financial side dealt with. You may be entitled to legal aid. We can also deal with the divorce if you want to save money on legal fees. We can help you with your divorce using our market leading Divorce LegalPac service which costs just £90.00. The Divorce Service gives you a professionally completed suite of documents, a step by step guide to procedure and free help and support by telephone or e-mail until you are divorced. This means we are here to assist you throughout the process from answering simple queries and court related questions to editing or amending your documents. With Divorce-Online, the process takes on average 3 months to conclude. In addition to the fee for our service there are court fees payable of: £180.00 at the start of the divorce £30.00 at the end of the divorce. For more information and to order this service goto: www.divorce-online.co.uk/divorce.asp
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My daughter and son-in-law have unfortunately decided to get a divorce. They have a 1 year old daughter and have agreed that her and my daughter can stay in the matrimonial home and he will pay maintenance. He has moved back to his parents. My daughter has always managed the finances and has managed to pay all the bills for the last six months with her part-time income of £4,500 and a payment from him My questions are: 1. As she only works part-time she cannot afford the mortgage on her own income. He wants £10,000 of the value of the home. As mentioned earlier she can still afford to pay all the bills whilst he pays some maintenance. How does she convince the building society that this can be maintained and how can she ‘tie-up’ the £10k so that he will receive it when they are divorced. Can she insist that his name still is on the mortgage agreement . As she has been diagnosed with MS, the stress that she is under is beginning to worry me.
A.	Although most high street lenders do not advertise the fact, there are specialist mortgages designed for people going through divorce, where maintenance income will be taken into account as part of the decision to lend. The best advice I can give us to have our mortgage broker partners, The Mortgage Marketplace give your daughter a call and they can discuss her situation and go out into the market to see if she can be placed. This a free no obligation service and will at least give her some idea of what is available. click on the link below to set up the telephone call. http://www.divorce-online.co.uk/services/Propertycentre/mrtg_mkt_plc.asp
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	recently i have have separated from my wife of 15 years and shortly after she has moved in with another man which she has seemed to be having an affair with i have my daughter living with me in the family home. my wife has been walking in and out of the home while im not there through the back door or through convicing my daughter to let her in. we onw the home on a mortgage which is Joint and several so we both own the house. is there any way that I can stop my wife from entering the property without my permission?
A.	Not really as she is a joint owner and until you have begun divorce proceedings there is very little you could do. if you consider her behaviour is causing distress to both you and the children you can apply under the family law act 1996 for an occuptation order to exclude her from the property until the issue of who gets the house has been resolved. However in the first instance I woudl write a letter to her indicating you find her behaviour distressful and disturbing and that in future you would like her to telephone or e-mail to confirm when she will be visiting, failing which you will seek advice abotu obtaining an order to suspend her occupation rights. I would also change the locks, as a practical measure, even though she could get an order for you to hand over a new key. I doubt she would bother doing this, although it will make her very angry.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I are separating with a view to divorce after 10 years and 8 years married. We have a 6 year old. Although the mortgage is in my wife's name she has never made any contribution to the payments or any bills. She earns 25k and I 30K. do I have to do more than split our assets 50/50 and pay maintenance in line with csa regulations
A.	You will have to pay CSA come what may, but you will be able to argue that there is no need for any additional capital to be paid as she is f/t work and earning a similar salary to you and therefore has mortgage capacity. I would howver seek independent legal advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife & I have been married for 2 years and have lived together for 3, we have a Joint mortage although I have paid the mortage and the majority of the bills since purchasing the property, As my wife is a Student and has no income. My wife & I are trying to resolve everything between us, but I am not sure of my legal rights. Is she entitled to half the profit from the property or not?
A.	Ian Yes, she will be entitles to a 50% share of all the matrimonial assets unless you can prove that you have made a contribution which would outweigh any need she may have for capital. My view is that the court would say that it would be fair and equitable to split the proceeds 50% as the property is jointly owned and the intention on purchase was that any proceeds on sale would be divided equally.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been married for 12 years and have two children 9 & 4 yrs. I moved into my husbands house when we got married. The mortgage is still in his name. Would this make any difference in a divorce? Our marriage has been steadily breaking up for many years. I would like him to leave, but he refuses to go. Is there any way of making hime leave? What happens if I begin divorce proceedings with him still living at home? I work part-time (14hours a week), would I be entitiled to legal aid? I'm sorry for so many questions, but I really am desperate to get out of this horrid relationship and feel I have no where to turn at the moment - please can you help?
A.	First of all you need to regsiter a matrimonial homes act caution to stop him selling the property as it is in his sole name. Secondly if you want to get the question of the house sorted you will need to begin divorce proceedings and then issue an application for ancillary relief, which ios the financial aspect of the divorce. You will not be able to make him leave the property in the short term unless he has been violent to you. If you are on low income you will be able to get legal funding (legal aid) and I suggest you see a Solicitor asap. You will not be able to get legal aid for the divorce itself but we can help you with the divorce part leaving the Solicitor to deal with the financial aspect as they are different proceedings.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Hi.. have been married for thirteen years, for the past 3 years we have lived in the same house but not shared the same bed,social life etc.. .. we have a business, of which we are equal partners, a little bit of land, boat, and my husband also has shares in his families business too plus a private pension, our home is owned out right with no mortgage. two questions please.. 1. I want the house without having to buy it, I have no desire to want part of the business,land etc.. would this be possible. 2. could we get divorced but also still share the house, so as it keeps the financial aspect of us both having to start all over again. I know my questions might be strange .. but we are still friends and I just do not want to be married to this man any more. please could you advise me on what to do..
A.	If you want to continue living in the same house that is a matter for you. I would however suggest that you change the way you own the house by severing the joint tenancy and becoming Tenants in common. This means you will own the house in separate but equal shares rather than for the benefit of each other as you probably do now. You will need a conveyancing solicitor to do this for you. We can help you with your divorce using our market leading Divorce LegalPac service which costs just £85.00. The Divorce Service gives you a professionally completed suite of documents, a step by step guide to procedure and free help and support by telephone or e-mail until you are divorced. This means we are here to assist you throughout the process from answering simple queries and court related questions to editing or amending your documents. With Divorce-Online, the process takes on average 3 months to conclude. In addition to the fee for our service there are court fees payable of: £180.00 at the start of the divorce £30.00 at the end of the divorce. For more information and to order this service goto: http://www.divorce-online.co.uk/redirect.asp?goto=services/legalcentre/divorcelp.htm If you have agreed your finances with your spouse then you will need to obtain a court order to ensure that there can be no further claims in the future. This is called a Consent Order and we can also draft this documentation for you to ensure that your finances are settled with the divorce. The Order is normally filed between Decree Nisi and Decree Absolute so you may need to order the service as soon as possible to ensure you can receive your order in plenty of time. We have therefore developed the Divorce Extra package to cover both the divorce and finances. This costs £160.00 To order this Goto: http://www.divorce-online.co.uk/redirect.asp?goto=services/Legalcentre/divorceexlp.htm
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My brother and his wife have been married fro 2 and a half years and his wife has a daughter aged 5 years of age. They have decided to get divorced and my brother would wishs to sell the house with about 40k equity and split the money equally. She works part-time and would never be able to get a mortgage for the amount they currently have and has told him she can stay in the house until the child is 18 and then sell it, is this right that he has to provide a roof over a child head that isnot his, she has mentioned that her daughter is "a child of the family". Any help greatly appreciated.
A.	As the girl has been treated as a child of the family, the court will have to consider her housing needs in any settlement or order that they have to consider. If she is not able to afford to re house herself it may be sensible for him to consider giving her more of the equity in the property if it means he can secure a deposit for another property. I suggest he seeks independent legal advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	If I own the house I currently live in with my wife. Do I risk losing it if I move out to live elsewhere. We have a small child who will live with her mother.
A.	There is no more risk of losing it if you stay or go. The court will look at the needs of the parties and any children first and foremost.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	in brief just about to sign up the papers for divorce. married 10 years, one child aged 2. wife previously worked full time. she now works 1 day week or so since we had our child. have house worth £290k and mort of £120k. she tells me that she wants a house for £150k out of our equity for her and our child. of course i'm happy to pay maint for child and pay her a lump sum towards a house, but can she really expect almost all of the equity? and lets face it after fees for solicitors and courts i'd end up with nothing. i suggested she could consider a small mortgage. can't i expect even enough for a deposit on a new house for myself. she tells me her solicitor says she is within her rights. Also she's running up bills, currently £15k on credit cards. can i stop her? will i have to pay?
A.	It is unlikely that you will receive nothing as you have sufficient equity for her to buy another property with a small mortgage. I would get independent legal advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	divorced 4 yrs. Wife moved from property 3 yrs ago. Joint mortgage £45k including endowments of £35k. These are due to mature in 3/5 yrs. Property valued at £55k 3 months after she moved out. Now worth £90k+. I gave her a small amount when she left based on half the profit in the property if we had sold it at that time on the understanding that when the endowments matured she could have half of the residual in those. I have also given her other lump sums in the interim and paid for holidays etc. I have paid the mortgage and all other costs since she left even accelerating the capital repayments. She works part time and I full time. She is now wanting me to sell the property and claims half the current profit. I kept the property on joint names because she always maintained she might return one day but now she says she will not. She is 54 I am 51. Do I have to settle at current market value or can I refer back to the date she walked out.
A.	You should have had the settlement put into an agreed ordere at the time of the divorce to protect yourself from further claims and if you had Solicitors at the time they are negligent in my view fro not advising you as such. The court will take all matters into account and the fact that she has made no contribution to the increase in value will be taken into account. My advice would be to see if there is a minimum sum she would settle for to get ot out of the way, then have a consent order lodged to ensure she cannot make any further demands.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I have a 4 bed-roomed house which my wife will be unable to maintain when we get a divorce. Can I legally be made to pay for her to continue to live there (we only have one daughter) or can I force the home to be sold and her to obtain a smaller property and split any profit.
A.	It is likely that the court would make an order for sale if you can show that it would be unfair for her to continue in the property and that their are cheaper properties she could buy which would meet hers and the childs needs. A 2 bedroom house would actually suffice in my view. I suggest you see a Solicitor asap.
Answered by: Yasmin Qadir, Lawyer, FILEX
Q.	How is the equity split I am going through a divorce and we have 1 child aged 4 we have been married for 13 years. Am I entitled to two thirds?? Thankyou
A.	Hi Janine the fact that yours is not a short marriage does make a difference to the settlement. There is no reason to suggest that you are entitled to two thirds. The child will be considered appropriately and you should try to reach an agreement or come to an arrangement regarding child maintenance. Each case is different and you have not provided details of your particular case. I would urge you to seek independant legal advice on this.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I bought a house with my girlfriend in 1999. However, I paid all of the deposit, all of the mortgage and all of the utilities. She moved out in 2001 and went to live with somebody else in Italy. Although the house has been up for sale, it hasn't sold and I recently offered to buy her out. She has agreed the principle but has refused my offer. She won't enter into a dialogue to resolve the issue. Is there any way that I can transfer the property solely into my name?
A.	The only way you can do this is to apply to the court for an order vesting the property in your sole name. You will need to see a Solicitor to do this. The court will decide what proportion of the equity she should receive, taking into account you have pretty much paid for this property outright. I suggest you write to her telling her that if she does not agree to your offer within 7 days, you will issue proceedings.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Hi my Q:is my husband & i have been living seperated in our house for 2 years now, i am at my wits end end because i want him to go, we have 2 children 8/11 my husband is always giving me hassle, & likes to put me on edge constantly, he keeps spying on me whilst im at work he doesnt like me to have any friends, i cant carry on living like this, is there any way i can have him move out, we have a joint morgage etc, as well as debts that he has built up, i dont know where to turn can you please help.
A.	Mary The only way you can bring this to a head is divorce him. You can proceed on unreasonable beahviour. You are then able to apply to the court for them to determine what will happen to the house if you cannot agree. This takes on average 3-4 months to conclude.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I cohabited with my ex for 25 years, We had 3 children, the youngest of whom is now 12, and split up 5 years ago. as I stayed at home with the children, I have no pension, and as I am now 50, although working I willl not have the means to establish one. i have stayed in the family home with the children (mortgage paid, jointly owned). Can my ex force me to sell when my youngest is 18? I would like to buy him out at a reduced rate - I can't afford the full amount. Would I have any legal backing to do this? He has a good pension, earns at least 4 times my salary has bought another property, and is about to cohabit with his new partner.
A.	He can force you to sell at your childs 18th birthday and you will have to give him half the equity as you have no legal relationship other than as property owners. The court will not take into account your income or his income etc as the law does not look into that where cohabitees are concerned at the moment.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	My wife and I are currently going through divorce and my new partner and I are currently buying a house together. I am not putting any deposit into the house as my wife is aiming to get the matrimonial home. How do I prevent my wife getting a share of my new house (which will be bought before we complete the divorce)? Can we put the new house in my new partners name and myself as a tenant even though we have applied for a mortgage jointly - or is there another way? Thanks for your help
A.	Mike The only way to make sure that the property is not taken into account is for the conveyancing solicitor to draw up a deed of trust that specifies what proportion of the equity is owned by who. Usually this will deal with the deposit and I would suggest that you ask them to explain this in more detail to you. However, your wife cannot get her "hands" on the property itself, only have any asset value taken into account and the fact that you have secured housing. This may have an effect on the amount of equity you eventually receive from the property as your housing needs have been met for the future and therefore your NEED for capital has diminished.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Sorry to bother you with a quick question but I am in desperate need of sound advice. My wife left me a solicitors letter for when I got home two weeks before Xmas which stated She was divorcing me and wanted me out of the house within a week so she could return to the home with our son (7). It stated she was afraid of 'violent outbursts' and that I had to agree to leave by the end of the week. I took advice, and stayed put as the 'violent' accusation was a complete lie and I realise she may have been advised to say this in order to apply for my 'eviction'. The house is in my name and I pay all the bills. We have since agreed to try again but I have recently found out that she is applying for family tax credit and that she has put she has no live-in partner with her. This has raised my suspicions that she is preparing for another try for divorce and I need to know how best to protect my investment in the house. I work shifts and know I have little chance of keeping my son or my house but wondered if re-mortgaging the house before she has a chance to proceed with divorce would at least give me some capital to help me get back on my feet when she decides to press on with it. Also if I remortgage, it may put the financial commitment required for the future payments of the mortgage out of her reach. She works full time but only earns half as much as I do. Since our 'reconcilliation' she has agreed to pay half of the bills as long as I pay for the mortgage - this leaves us similar amounts for ourselves and seens fair to both of us. She also wants to be on the mortgage, which scares me as I don't know why. She has had two affairs - one which she admits to four years ago and the other which she still denies but I am almost certain has happened and is probably ongoing. I have forgiven her in the interests of our son's childhood but may have to admit defeat if she presses fopr divorce again. Should I remortgage quickly and invest the capital raised in a seperate account for my use later? Would this protect the house from her ownership if it was out of her price range? (at present she can afford the mortgage alone if required? Please help me on these two questions. Thankyou very very much. G Jamieson.
A.	Gordon You are perfectly entitled to re mortgage the house but if it was without her knowldege the court could look at it as a transaction intended to defeat a divorce finance claim, and order you to pay it into court pending resolution of the matter which would be a complete waste of time if that were to occur. There is very little you can do to protect your assets as they are now matrimoinal property and not yours as such. I would get legal advice before you proceed.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My children are 17 and 15 and want to stay with me if mum and I get divorced.I caught my wife commiting adultery last week and we have seperated but she has suggested she moves back home to ease our debt problems but we live seperate lives as friends and companions.Can she chuck me out of our jointly mortgaged house later and insist on keeping the children?
A.	No she cannot have you removed from the property without a court order as you both have matrimonial home rights which can only be suspended by the court. If you cannot agree a financial settlement then the court will make an order determining what will happen to the house, and this could take months. Also the children's wishes will be taken into account as to who they wish to live with because of their ages.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	hello, my husband and i have been married only 6 months but a separation/divorce looks inevitable. We haved been together 7 yrs lived together 5 yrs prior to marriage, 3 yrs at my rented acc 2.5 yrs at our present house.I contributed a small amount (£2.5 - £3000) towards the refurbishment of our home as it took us 6 months to renovate. the house is mortgaged solely in my husbands name as my credit rating wasnt good at the time.I gave up my business to work for him and build his. I work for him, being paid £80.00pw as a way to contribute to the mortgage.I also solely upkeep our house. i have a 13 year old child who we both bring up. My husband has informed me that after seeking legal advice he is able to evict me and my daughter from our house in 28 days and i have no legal rights at all.is this the case? regards michelle
A.	Your husband cannot evict you without a court order as you have matrimonial home rights. As the property is his sole name you need to register a Matrimonial Homes Act caution to prevent him from selling or remortgaging the property until either a settlement has been agreed or the court has decided what will happen to the house. The fact that there is a child of the family to consider will be taken into account even though the child is a step child. I suggest you seek immediate legal advice to have the caution registered.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	I am after some information with regard to when I can inform my lender that I am no longer responsible for paying the mortgage. My wife (I assume) have been claiming Income Support since September 10th (or thereabouts) and of course, I have been paying the mortgage ever since then (and in the past). How will I know when I am no longer liable to keep on paying this and that Social Security takes over the payments? Do I get a letter saying that I no longer need to pay this, do the lender say that payments have been received from Income Support or what? Any help on this will be gratefully received Many thanks
A.	Keith If your wife will not give you the information then you will need to keep checking with your lender as to when payments are being made by the DSS. I think however it is perfectly reasonable to expect your wife to give this info. Are you aware that there is often a 9 month delay in DSS starting payments? They also do not always pay the entire amount. You remain liable for the mortgage until such time as you are released by the lender. I would suggest that a you query these matters with your wife( via solicitors if necessary).
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I divorced my wife last September and have since re-married. My ex still lives in the family home, a four bedroomed property with the three children aged 12, 9 and 5 for whom I pay maintenance, and we are no nearer reaching any solution as to financial settelement. There is a substantial amount of equity in the house along with endowment policies and joint debts. My ex-wife also has her boyfriend living with her. I would like to purchase a new home and need to resolve this issue. One solution would appear to be to sell the endowment policies to pay the debts and for me to have the remainder as part of my settlement as my ex claims she cannot afford to buy me out. However, I need to get my name off the mortgage, would it be reasonable suggest that she obtains a mortgage in her single name (I'm not sure what part the boyfriend plays in the financial situation) and for her to pay me my share of the equity (ie the part that remains after the endowments are sold) either when she re-marries, the house is sold or when the youngest child reaches 18 ? Thank you in advance
A.	I would suggest that the house be sold as she now has a new partner and the equity divided upon sale. I would also suggest the endowments be sold as their value long term to either party is questionable. I suggest you see a Solicitor about moving this forward.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	I was married for ten months and separated last October. My wife is the petitioner. When we married I had a house in Derby under my sole name where my parents lived. This house was never our marital home, there was no intention of making it our marital home. She never contributed to the maitenance or the mortgage of the house. We are both young and professional and work with similar incomes. What is the prospect that she can make any claim. Sh has already made an application under the matrimonial Home right act.
A.	Jatinder On the facts that you give, I assume that you mean she has put a caution on the house. It may be technically wrong in that she has used a Matrimonial Homes Act Caution, but if you were to raise this, she could use other options to reach the same end. I would say from the facts that she would be unlikely to succeed with any application against the house. If no proceedings or orders are made within the divorce, then her caution will lapse upon decree absolute. I would suggest that you contact her solicitors to query the basis for her actions, and also see a solicitor yourself to fully go through the details.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I have jointly owned a property for the last 8 years. I bought a second property 18 months ago solely in my name. We plan to formally separate next year and sell the second property, put the main property in my name and with her share of the assets my wife will buy her own property. Will we be liable to capital gains tax on the sale of the secondary property?
A.	This is a complicated issue and you really do need to get specialist tax advice. However that said in normal circumastances a 2nd home is a chargeable asset for CGT purposes.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been married for 8 years.No kids. The house is in joint names. The mortgage is paid from my account. My wife has worked and contributed financially as well as in other ways. She now wants a divorce, to sell the house and togo her own way. What is she entitled to. If she has been unfaithful does this affect her entitlement. If she leaves and moves in with a new partner how will that affect her claim on the house.
A.	It would appear that there is an equal claim to the assets and it would therefore be an equal division of the equity. her adultery is irrelevant to the calculation as is her moving in with her new partner. The only way you can argue she should receive less is that she will be housed but you will need more capital than her to secure a new property as you do not have your housing needs met by another person.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I are going through a divorce after 16 years of marriage. About 10 years ago my wife was left a tenth share in 2 properties following the death of her great aunt. One property has a sitting tenant, the other house is rented out. (We also have a property) The value of each house per the accounts of the trustees is £27,000 at probate. Similar properties in the same road sell for £180,000 to £220,000. I assume that I am entitled to a share of this ‘marital asset’. Would this be based on the probate value or current value? Obviously there is a huge difference between the 2 figures. I accept that the property with the sitting tenant may be worth much less than the other. You advice would be appreciated
A.	These properties are matrimonial assets and can be taken into account along with the other assets you own. The properties will need to be valued at todays prices, not the figures given for probate purposes.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been married for about 18 months. My husband and I live in a one-bedroom flat which is mortgaged in my name only. The flat was bought by me in 1999 and I make all the repayments. My husband is not a British national and has only residency here which was granted on the grounds of his marriage to me. We do not get on at all but he refuses to leave insisting that I sell the flat and give him his share. Do I have to do this? He recently completed a 3-month contract but before that he was unemployed for 12 months during which time he was able to live quite comfortably off his earning in the previous year. He has always contributed to household expenses but I have argued that he would have had to pay utillity bills, food etc whereever he lived and these surely cannot constitute an investment in the property. Although he is currently unemployed, his earning potential is greater than mine at the moment as I am a part-time student and expect to be on a low income for at least the next 2 years. Apart from the property aspect, we both agree that divorce is the only option for us. Please can you advise me? Also, would one of us have to leave the matrimonial home before we could start divorce proceedings?
A.	In such a short marriage the general rule is that the parties leave with what they took into the marriage. Further more he has made no significant investment in the equity of the home to justify a share. However for practical purposes it may be you should consider making him an offer to leave, such as a deposit on a rented property, this would then go someway towards meeting his housing needs. I would obtain Solicitors advice if he refuses to negotiate on this point.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	The property we lived is bought in my wifes name.Do I have any rights ?In the meanwhile I have moved into rented accomadation.Thank you very much M.Grobmann
A.	Yes you have a claim on the property as it is the matrimonial home. What that entitlement is is difficult to say as I have no information about the length of marriage or your contribution to the assets.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	Hello, My wife of 18 years and I have both decided to divorce. So far things are pretty amicable with us agreeing that we should sell our house and split everything down the middle. This will result in each of us gaining about £30,000 each. My wife has already begun flat hunting for herself and the kids and I have been scouring the net looking for property for myself. My problem is that I have been on incapacity benefit for 5 years and have just recently been successful in my claim for Disability Living Allowance, albeit the lower rate. I cannot apply for council housing as I am still deemed to be a homeowner. However once the house is sold I shall be homeless if I do not have a place to move into by then. Will I have to wait until then before I can apply for housing from the council or is there a way around this? I am desperate to move so I can rebuild my life again but am in no financial position to move until the house is sold. Any guidance on this matter would be really appreciated. There is also a matter of my Occupational Pension Schemes. I have two that have been frozen. What happens to these? Many Thanks Bob - Birmingham
A.	do not know the ages of your children or your wife’s income position. It is by no means always the case that assets are shared equally particularly if one party is disabled, or if there are children. I would recommend that you see a specialist family solicitor as soon as possible to discuss the case fully. If you wish to apply for Local Authority housing after the sale of the house then I would suggest that you see the Homeless and Housing Departments at your local Council as soon as possible to explain to them the circumstances and to ascertain your housing status. It could well be that they will take the view that you have made yourself intentionally homeless by agreeing to the sale of the house. You should get their response to these issues in writing. It is unlikely that they will re-house you until the property is sold. Availability of Council housing varies from region to region and you may find that even if you are deemed to be homeless, then the kind of accommodation they offer may offer you, you may not find to be acceptable. I have often found myself in the situation where I have been obliged to make applications to Court within divorce proceedings for the financial matters to be resolved, purely so that the Council can be given a Court Order for the sale of the house or transfer of the house etc. A local solicitor with knowledge of the situation will no doubt be able to assist. With regard to your pensions, these will remain with you unless the Court orders to the contrary. If you have agreed with your wife that she will not make a claim on the pensions, I would suggest that you get this agreement properly recorded after both of you have taken independent legal advice. A great deal here depends upon the value of the pension and whether or not it would be worth your wife making any applications regarding a sharing order in respect of them. It would also depend on any pensions she had in her own right.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	hello... my wife left me some 2.5 years ago ..she had an affair and went to the guy that she was seeing he left his wife and bought a house for them to live in he has a good job and is some 18 years younger than me.. i am disabled.. now the divorce is going ahead on grounds of her adultery she is saying that she wants half of the house that we have lived in we were together 27 years.. and in this house 23 yrs .. her name is not on the deeds as she has never worked,, thats the way i thought in them days i supported her in everyway ... but since she has left i have paid some 12 thousand of the mortgage.. had improvements done and its value has risen some 20 % ... i look after to foster children 11 and 14.. we had them before she left ,, so i feel very strong about the fact that she shouldnt have 50% after all theis time or whenever i decide to sell .. so what is the legal side of this as she has everything includig 2 cars . and is living with a man with a good income.. i have nothing apart from social ,, and dla.. no other income .. i am getting really stressed on this so would be grateful for any info .. thankyou alan marshall
A.	Since divorce proceedings are in place, if you cannot agree the financial and property matters between the two of you, it is open to either of you to make an application to Court within the divorce proceedings to settle these issues. I would say that since this seems a long marriage that 50% of the assets would be a starting point. I would stress that this is a starting point only and the Court has a wide range of powers and looks at a great many factors, including: (a) the income, earning capacity, property and other financial resources which each of the parties has or is likely to have, including earning capacity, which it would be reasonable to expect a party to acquire; (b) the financial needs, obligations and responsibilities now and in the future of each of the parties; (c) standard of living; (d) age of the parties; (e) any physical or mental disability of the parties; (f) contributions of the parties now and in the future to the house or caring for the family; (g) conduct, unless it is inequitable to discard it; (h) the value of any pensions now and in the future Without further details of the value of the house, potential to re-house within the area etc, it is difficult for me to make a comment on the orders that the Court could make. However, it is not by any means set in stone that she will receive 50% of the house, given the particular circumstances of your case.( particularly the fact that you are incapacitated.) I would strongly suggest that you see a Solicitor to go into this matter in depth to discuss the potential options
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	I am divorcing and my husband has said that he will give up the equity in our property if he can leave it to our son of 8 years old. I need that money to be able to purchase another property. Can he actually do that and what are the implications in the future?
A.	I have no details about your respective financial positions and cannot comment on the fairness of the proposal. The arrangement should be capable of being implemented. However, property, pensions, maintenance and financial arrangements following divorce need to be viewed as a whole, with the housing needs of any children prioritised. The Court has wide powers to transfer property between parties either permanently or for stipulated periods(e.g.until a child had completed education). It would be highly unusual for a Court to make an order of it's motion in the terms that your husband proposes. I would strongly advise that you seek legal advice on this proposal, as it may well be that you are entitled, at the very least, to the use of the property, or its sale proceeds, until your son finishes his education. Your entitlement may be even greater that this
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife has recently left me. We have no children. We have been married for 5years. We own a house jointly and have doen so for 3 years. I would like to stay in the house and pay my wife a fair price for her share. I appreciate that not all cases are the same, but as a general rule of thumb, could you advise me of whta my wife is entitled to ? Do I have to give her half the value of the house or half the equity ? Thank you.
A.	Rule of thumb would day you give her half the value of the equity in the property not the value of the house.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My soon to be ex-wife has informed me that her solicitor is arranging for the house to be solely under her name. Is this possible and does this mean that I would not have any rights to the house if sold ?
A.	This cannot be done without a court order or your agreement to it happening. I think she means they will be applying to the court for an order to get the house transferred. i suggest you get legal advice on your position.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife left the family home (which is in joint names) 6months ago.We have agreed to put the house up for sale, it is now on the market. I work shifts & my son has recently left for Uni. We are at present legally seperated.With the house now empty of a night she has taken to returning & removing property. Every night when i put the key in the door i am expecting it ransacked, i have to carry on my person or hide anything of value, its no way to live.I am not against her coming to the house, after all she still owns half, although she pays nothing towards any of the bills. Can i write to her or her solicetors, & demand that she gives notice before she comes over?& that i must be in?
A.	I am in agreement that the situation is not at all acceptable. She does not live there and does not contribute towards the property and should not just turn up willy nilly. I would write to her Solicitors requesting that she gives you notice in future of her intention to visit the house and that she also give you an undertaking in writing not to remove property without joint consent pending final settlement.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been divorced for 3 months and separated for 2.5 years. I live in the matrimonial home with my 2 children ages 6 & 7. My husband lives with his girlfriend of 2.5 years in her matrimonial home. He tells me I have to sell the house and split the equity 50/50. He has never lived in this house as we split up in the midst of an argument whilst moving home. I have paid the mortgage for 2.5 years from my bank account. Can he make me sell the house, can he ask for 50% split of the equity on the value at todays date?
A.	I doubt very much that he can ask for 50% of the value at todays prices. He is obviously entitled to a percentage of the equity but I would argue that your need for housing is much greater than his and it would not be appropriate for the house to be sold until the children have finsished school or until you cohabit or re marry and at that point he should receive his share which would not be 50% but a lesser percentage. I would get some estate agents details of suitable properties in your area to see how much mortgage you would need if you had to give him 50%. You can then see how much capital you would need to rehouse yourself and the children on your current income which I suspect would mean a reduction in what he will receive.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been married to my wife for 2 months and we have been living together for 14 months.we would like to know that if our marriage was to break down would the new property of 2 months be legally distributed half each even though the mortgage was taken out in my sole name.We would like advice as my wife cannot go onto the mortgage due to a C C J. I put 40k into the property and she wanted to know what % would the divide be. Can you please help us as we are getting varying advice Many thanks
A.	My view is that your wife will leave with what she put in to the property, so a 50% split is not likely and that you would retain the 40k you put in to the house. That said there may be other factors you have not made me aware of which could change that view.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife committed adultery and has moved in with the other man into his rented accomodation. I also live in rented property; it is an armed forces property with me as the registered occupier as I am a member of the forces. My wife and children are classed as dependants. My children live with me which my wife agreed to and we are waiting for the decree nisi. Is she entitled to half of the assets of the house i.e furniture, etc. She claims she is but I am not so sure especially as I have the children and their needs must come first.
A.	It would be very difficult for her to claim for essential furniture items if they are required to house you and the children.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I moved in to my girlfriend’s house over 8 months ago. I took over the mortgage and the deeds are written in both our names. We had a cohabiting Deed of trust written and witnessed signed by a solicitor before living together. The Deed states that if the relationship ends my partner holds her £50,000 value of the house obtained before we cohabited together and that I was to be returned my £10,000 lump mortgage payment. The Deed also states that future equity since living together was to be split 50:50 between us. The relationship has now ended and I have moved out of the home but still paying the monthly mortgage and half the bills. Where do I stand on removing my name from the joint mortgage and having my lump sum returned to me if my ex partner is not prepared to sell the house and move on. She can not afford to solely pay the mortgage or my lump sum; it’s all tied in the property. The current value of the house has enough equity worth to cover 100% the cost of a smaller property out right for my ex partner. My partner has three children under the age of sixteen, all from a previous relationship, we have no children together. The father of the children is in constant contact and also has his own property. I’m yet to seek legal advice from a solicitor, if my ex partner does not come to an agreement with me, where do I stand in law. Is the Deed of trust automatically executed after one of us instruct a solicitor. What if my ex partner insists in not selling the house and removing joint names from mortgage? Would this be dealt with by courts, or due to the Deed, by solicitors? Thank you, John.
A.	You would have to apply to the court for an order for sale and seek to rely on the deed of trust. As you are not married the court will treat the matter as a commercial contractual dispute and will enforce the deed. However she can apply under the children act for a property adjustment order but as you only lived together for a short while I would not believe the court would make an order to that effect. You should instruct a Solicitor asap.
Answered by: David Leadercramer, Solicitor
Q.	My partners wife left him to live with another man 10 years ago. They married in 1971 and there are 2 children of the marriage aged 27 & 31.12 years ago they purchased their concil house and following year my partners uncle died and left his house to the 2 of them. The first house was sold and the equity of approx £38,000 was used to spend on work on the inherited house, heating,installation of kitchen & bathroom, and £9,000 was lent to a daughter. He solely supported one of his daughters her partner and their children for approx 3 yrs after the wife walked out, and in effect his children have kept him poor! When his wife walked out she was given half the savings. She has always been reluctant to sign divorce papers but last year eventually agreed on over 5 yrs separation. The only asset The matrimonial home was valued at £64,000 in August 2001 ( it was in need of extensive repair work new thatch roof, new tiled roof and complete decoration etc.) She requested £50,000 from the house settlement. This was agreed she then refused to answer solicitor letters and day nisi was granted her solicitor wrote saying she withdrew her settlement and wanted the house revalued note a new thatch has been completed and three rooms have been made habitable but paid for largley by my partner and some by me.My partner is now worried that he will lose every thing as she says she will take him to the cleaners and is demanding 1/2 the equity value of 1st house and a settlement on the new valuation of the present house. What is my partners situation.
A.	There are a number of missing facts which make it difficult to advise on. I wouldnt be too concerned about the threat that has been made. You dont say what advice your partner has had from his solicitors but I would find it hard to imagine that your partners wife could demand both half the equity in the first house and something from the second with any strong prospects of success particularly if contributions have come primarily on your side and the parties separated so long ago. I dont know what your partner does how much earns - what is the situation of your partners wife? where does she live?. Without a lot more information it is hard to give definitive advice but my initial feeling is that your partner should stand firm and press ahead with court proceedings if his wife proves to be intransigent
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife has recently stated that she doesn't want to continue our marriage following numerous previous splits. Most recently I moved out in Feb after she stated her wish to separate and moved into lodgings against my will to give her space. She then invited me back in April/May to try to reconcile but seven weeks later has changed her mind. We have two daughters aged 11 & 6 and this time I have said I don't intend moving out. We are in separate bedrooms. There is no question of domestic violence etc. The children are more than happy to have me around. Our home is mortgaged. Can my wife force me out of the home if she pleases?
A.	No she cannot force you out without a court order called an occupation order. To obtain this she will have to show that she and or the children are likely to suffer significant harm if you stay. This does include violence but can also include emotional harm. Otherwise she will have to wait until the results of an ancillary relief application to see what the court decides as far as the property is concerned.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	my husband has told me he wants a divorce we have a 5 yr old son together. The thing is 12 months ago he got a morgtage on our house in his name only but beforehand It was me that paid rent for the 4 yrs preivious as he did not live with me and our son then .He now wants a divorce because he no longer loves me and he wants me to move out. Can you please tell me if me and our son will have to move out and if I do am I entitled to half of the house also will he have to provide for me and our son as I do not work but my husband is working .thankyou
A.	It is very doubtful that you will have to move out as you have a child. The court has to take into account not only the needs of the parties but also any children, especially as far as housing is concerned. I would advise that you get a Solicitor involved asap to register a caution against the property to prevent him from selling until either agreement has been reached or a court has made a decision.
Answered by: David Leadercramer, Solicitor
Q.	As the first step to a hopefully amicable separation my wife and I are changing our owndership of our home from joint tenancy to tenants in common. She has put in about 90% of the capital value of the home through compensation she receives from the Thalidomide Trust. An accountant has helped us calculate this. Although I am virtually the only earner, we have only had a mortgage for 4 or 5 years of our 18 years of marriage. She wants the new tenancy in common to state that she owns, say, 75% of the property, and I own the remainder. We are both very keen to proceed amicably but I am hesitant about agreeing to this without advice. Our intention is to raise a further mortgage on the equity we have in our present home to buy a smaller place for me to live in, and children 1/2 time, to be jointly owned. Am I being foolish to accept this? Many thanks.
A.	The issue of tenancy in common only really affects the position on death although the court on divorce would be minded to look at what you had agreed in relation to your shares. I think however that a court would be very sympathetic to her capital needs and the fact that 90% of the capital value of her home came from the Thalidomide Trust. I do not think that you are being foolish but would need to know a lot more about the financial position of you both in order to give definitive advice
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband and I are separaing and will divorce after the two year separation. We are trying to be as amicable as possible. I had 3 children by my first husband and now have another child by my current husband. We want to sell the house and split the equity of about £35,000 equally and pay off any joint debts such as loans and credit cards. However I have a housing problem, I want to use my part of the equity to rent a house but the council will not consider me for housing if I do not consult a solicitor and try to remain in the property. I know that my husband can not afford to pay our mortgage and then rent himself somewhere else to live and inevitabley we will get into arrears and may lose the equity that has built up. Also by not selling the house we would not be able to pay off our debts before we separate. Can the council insist that I see a solicitor, we are trying so hard to be amicable butI still need to find a home for me and the children.
A.	The problem is that you do not want to appear to be intentionally homeless which is what would happen if you filed a consent order. You need to have an order that appears to have been made after a hearing. You will need a Solicitor to manafacture this for you. This should not cost you too much money if you explain what you need. You can however do the divorce your self which will save you hundreds of pounds. You need to have the divorce started to make the financial application and we can help you with this.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am still in the process of divorce. I wish to minimize the risk of creditors coming to me should my ex default on the mortgage or do something similar. My solicitor suggested that my name remain on the Mortgage, despite the house been transferred to my ex. At present all the income is from my wages alone, but I do not control what the maintenance is actually spent on. Chasing my ex for repayment after the fact could easily prove fruitless. and its easier to move forward knowing what risks you are taking
A.	The problem is this. If your wife is unable to secure your release from the mortgage then although you can still transfer the equity to her, you may have to remain on the mortgage and therefore you will still be liable in case of default. Your wife may be prepared to indemnify you in any order but this will only protect you if she has any money for you to claim against if the lender chases you. One option would be to agree to pay the mortgage direct from your bank account to the lender bypassing your wife. this would give you the control needed until she was in a position to have you removed in due course. Have you considered the divorce mortgage from John Charcol which will take into account maintenance payments and may allow her to have you released from the mortgage? http://mortgages.charcolonline.co.uk/learnabout_divorcee_mortgages.asp?linkfrom=divorceonline&lc=24a
Answered by: David Leadercramer, Solicitor
Q.	Can you tell me how to sever of a Joint Tenancy on a jointly owned property. I read somewhere that you can do this just by serving a written notice on your partner. Is a special form required? And does the mortgage lender/Land Registry have to be informed?
A.	There is no special form involved. A simple letter will suffice in equity to sever the tenancy. This will be good enough as between yourselves. However you should also ( if possible) make an application to the Land Registry to register a restriction but this will need both parties consent and this may not be forthcoming. You can then apply as a sole proprietor but will have to tell the Land Registry why the application has not been signed by both proprietors and give copy of the notice of severance. as well as a certificate of posting and confirmation of delivery. You should also consider making a new will to deal with the "severed" share.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	We have a house worth 175k. It has a mortgage of 63k and so equity od 112 left. If I get a "charge" of 25% on the property. My X is taking on the mortgage of 63k. My Question: what do I get 25% of. The cash left after the house is sold. Does whatever my X has paid off the mortgage get taken into account ? Thanks
A.	it is normally 25% of the equity less mortgage, estate agents and solicitors fees and disbursments that you will receive so it is what ever the house is worth at the point of sale in the future unless you agree otherwise.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I was with partner for 25 years. He inherited house. We have 2 children 28 and 9 living with me at the house which he left at my instigation 5 years ago. He pays into upkeep of the house. What are my rights financially re the house as I need to move on?
A.	Too complicated an area to give advice on the site. You may have a claim for yourself and you may have a claim on behalf of the children. I would seek advice from a solicitor to decide how best to proceed. This area of law is quite complicated.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am currently going through a divorce, and there are two properties considered. I am living in the former matrimonial home with my two children (9 and 12) and my new partner of 1 year. (This property was mortgaged in joint names, i.e. me and my husband) My husband is living in the other property which is solely in his name and owned outright. His new partner has been living there with him for 1 year. The only other major financial investment to be considered is his pension, in his name solely. Apart from that there are no other financial considerations between us. There are two things I would like some help on: Firstly, he is expecting to get a 50:50 settlement ... What are his chances? Secondly, my new partner owns his own property outright,and I need some information as to whether or not this will have some bearing in the financial outcome of the divorce. Will his financial status have to be declared. My partner has been living with me for 8 months. The values of the two properties are: Former Matrimonial home approx £235,000 with a £28,000 mortage to run for another 9 years with an endowment attached. Husband's flat is worth approx £130,000 with no mortgage. Any information would be greatly appreciated.
A.	The court will look at your need for housing and capital as well as pensions when considering these matters. There is no automatic 50/50 split or anything like that. the court look at each case individually. The fact that you now have housing with your new partner will have some bearing on your need for capital. If you are both in a fairly equal position as far as capital and income is concerned then the court would be looking at a fairly equal split, although the fact he has additional pension assets would have to be taken into account if you have no pension provision and there may be an argument that you should receive additional capital from the sale of any property to compensate, or a pension sharing order could be made. I any event you should really get advice from a Solicitor if the matter is likely to be disputed.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife + I live in a rented flat. She is leaving me,after 5yrs of marriage.She is viewing properties with the intention to buy,if her mortage application is approved and she buys the house before starting/applying for divorce.Where do I stand reguarding the property?.Do I have a claim on half of the property?.Do I have to pay maintenance to her in any way?We both have savings of 10,000 approx which we were going to use towards a deposit for a house together.Is there any way I can delay her buying a property before she divorces me?.And where do I stand if she buys while still married to me?.
A.	Any property that is purchased within the marriage can be taken into account by the court as can your savings. Whether you will have to pay her maintenance depends on her need for income. If she is able to get a mortgage then on the face of it she has sufficient income to look after herself and will probably not qualify on need. If you can try to negotiate a settlement that allows you to keep your assets and income and she her assets and income to effect a clean break so that when you are divorced, you both walk away with what you have.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	my husband & I have been seperated for a year and a half, I am now living with a new partner and wish to put my name on the mortgage. Would my husband have any right to my house?
A.	Technically, yes, he would as it would still be an asset capable of division by the court and could be taken into account. However it is unlikely that the court would make you sell the property to pay him any money if you divided all your assets at separation.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I have agreed that my wife can divorce me, even though it is me that actually wants the divorce. Divorce papers have been submitted to the court, but my wife has now refused to submit the papers for the direction of trial. How can I make her proceed? We had reached an agreement between us, which included the sale of our former house in which she still lives. She now wants to take the house off the market and continue to live there. How can I ensure that the house is sold, given that her mortgage limit would be around £60,000, but there is £80,000 outstanding and, with a house value of around £150,000 she would undoubtedly be looking for all the equity and still have a shortfall of £20,000. I earn £69,000 pa and she earns around £10,000, but she has just given up a job providing a further £6,000 pa. My two children live with her for nine nights per fortnight and with me for five. I live with my new partner and her two children in a house we have purchased together in order to be able to accommodate all six of us together. I had taken out my new mortgage in the expectation that my old one would be repaid and I would have a share of the equity from the old house. If these do not happen, my new mortgage (£125,000) will be a considerable financial strain. How does the fact that I have now bought a house with my new partner affect the situation?
A.	You cannot force your Wife to progress with the divorce, but you could apply to the Court to dismiss the petition for want of the fact that she will not proceed so that you can then issue yourself, (provided you have grounds). In any event within divorce proceedings you can apply to the Court to have finances dealt with. All the assets of the marriage will be taken into account and this includes any interest you have in property which is owned with your new partner. Check out the website for more information on what the Court take into account when considering finances. Also consider whether a CSA assessment would be appropriate for your maintenance for the children. After April 2002 it will be a broad based figure of 20% of your net income for two children, after deducting 20% for the children who live with you. In view of the money involved I would contact a solicitor.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been married for five years. My wife had her property before we got married. its part of her income , she runs a B&B and we live in it. I have not been able to able to buy any property between us.I am thinking of divorce because i cant get along . I want to buy a house before I get divorced, I want to know if she does not contribute towards the house , is she entitled to my 'house' or part at time of divorce. Her income is comparaable to mine and has paid off the mortgage to her house , has savings .we donot have any dependable children.
A.	The court will look at your respective incomes and housing needs as well as the actual value of the property if it came to a dispute. As she has her housing needs met and you do not appear to be saying you want a share of the property in her name then it is likely a court would not make an award against you. However you should get some independent advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My divorce is going through and is waiting for the decree nisi. The divorce has been going through amicably without the need for solicitors. Our children have all left home. I live in the marital home alone, which is for sale. There is no mortgage and the proceeds of the sale will be split 50/50 allowing my husband and I to buy independent properties. My husband is renting a property with his girlfriend and has moved his clothes and personal items out of the house and taken agreed items of furniture. However he lets himself into the house whilst I am out and helps himself to my property, sometimes he takes food out of the freezer that I have bought as well as items that I owned before I met him. He will also turn up whilst I am at home, letting himself in without knocking which I think is rude and unreasonable. I have since fitted a bolt to the inside of the front door so that he can't just let himself in whilst I am at home, forcing him to knock at the door. He has now taken to turning up at unreasonable hours demanding access, often waking me up (so that he can get something out of the garage). I think this is unreasonable, but I don't know if this is grounds for changing the locks or not. I have asked him to take everything he needs to his new house but he says he is entitled to leave his tools in the garage and can have access to them whenever he wants. He doesn't need to enter the house to access the garage as it is a separate building but I think he wants some control over the property as he resents me living there whilst he pays rent. He has threatened to move his girlfriend in to the house to try and force me out. My questions are: 1) Is he allowed to just let himself in and take my property? 2) Is he allowed to let himself in whenever he chooses, regardless of the hour? 3) Am I allowed to change the locks under the circumstances? 4) Would he be allowed to move his girlfriend into the house, even though I live there? I would fight this tooth and nail.
A.	As he is a joint owner he is allowed access, bit not at the expense of your lifestyle, sleep pr anything else. Put it in writing that you do not wish him to visit the property without a days notice in advance and that you have to be there when he comes round. Go ahead and change the locks. If he does not like it he will have to get a court order or break into the property causing no damage and repairing whatever is damaged. If he continues this is harassment and you more than likely would be able to get an occupation order to prevent him coming round. You are advised to get Solicitors advice on this matter
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have an appointment for a FDR hearing next month and currently disputing the matrimonial home. My ex wife is curently living in the house with our two children (aged 11 and 10) and has a boyfriend who according to the children stays most nights. He also works shifts which would account for the absent nights. In her Form E, she denied any relationship but when questioned in court admitted to a casual relationship and no plans to co-habit. (I divorced her for aldultery). We have just been informed by her solicitor that she is six months pregnant by this man but states that it wasn't planned and still stands by the statement that she has no plans to cohabit. She is claiming Family Tax Credit. How will this affect my case regarding a share to the assets. Initially I was in agreement about the house remaining in her name until the children were 18.This was before I found out about her relationship (and now the pregnancy). Also I haven't been allowed access to the house since my wife changed the locks and my possessions are still in the house. I would be grateful for any advise Regards Simon
A.	This close to an FDR you need to be advised by your Solicitor or a Solicitor if you have one. However on the facts you present there is a good chance the court will say she is cohabiting, but whether that will allow you to have the house sold to have equity released is another matter. You do not say how long the relationship has been going on. If it is a mtter of months, then it is doubtfull a sale would be ordered now.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I'm separating from my partner (unmarried) and we have a property in joint names.We paid greatly differing amounts towards the outgoings of the property, for the 4 years we have been in residence.I've seen/heard seemingly conflicting advice on how the equity in the property would be split. Bank statements are available to show all payments for the running of the property coming from my account, with a payment being received each month from my partner. I get the impression that the courts would start from a 50/50 position, and I'd like to know what the chances are of me receiving something more in line with what I paid in as a percentage.
A.	In cases where parties are unmarried the courts first look at the intentions of the parties when the property is bought and then at the contributions they have made. This does not just include mortgage payments but expenditure towards home improvements etc. You should get independent advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	This is a question about how divorce will affect my assets. I've been married for almost six years. My wife and I live in a mortgaged property I owned before I met her. All costs associated with this property have always been met by me. I also have a pension fund, endowment policy, shares, savings and other minor assets (motor vehicles). Our finances have always been seperate. She has always worked and has her own salary to spend as she chooses, but has no assets to speak of. My wife says she has no desire to make any financial claim on me (she is financially independent of me). I'd be grateful to know where I stand on this. Would the courts make me give her half of what I have, even if she hasn't asked for it?
A.	The court will not make either of you do anything if you are not in dispute. They will only make an order against your will if she makes an application to the court for it to consider her financial position. When you decide to divorce you can file what is known as a consent order which sets out your agreement and the court then rubber stamp this and a clean break order is made making sure neither party can come back later and make a claim. I suggest you begin divorce proceedings and get a consent order drawn up to ensure this.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have a joint mortgage with my wife ,we have been seperated 1 yr. I was wondering if I could rent out the house without her consent as I am the sole mortgage payer she pays nothing towards the mortgage or insurances
A.	Technically you can if you are the sole owner. You will however need to get permission of the lender before you proceed to let the property. If your wife lodges a Matrimonial Homes Act caution at the land registry this may change matters. I suggest you get some live advice from a Solicitor http://www.divorce-online.co.uk/redirect.asp?goto=services/legalcentre/telelawyer.htm
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am divorced but to date have not reached any financial settlement with my ex-wife. We had all but finalised things - she would get the house for her and the children and I would get an endowment policy that was tied to the mortgage, but was to be released when she remortgaged (worth approx £6000). I was prepared to sign the house over, more from the point of securing a home for my 2 children - aged 13 and 15, than from any thing else. Anyhow my ex has now remarried and moved her new husband into the house that I presume, legally I am still part owner of. Since her re-marriage I have now requested that my part of the house be put in trust for the children, but am still prepared to sign my part over - not an unreasonable request I wouldn't have thought, considering the new husband is unemployed and has no capital......... Anyhow I am now beginning to wonder if I am being taken for a real prat? Can you please tell me my legal position in view of her remarriage? I have a new partner but am not proposing to remarry for the forseeable future.
A.	The court will be more concerned with maintaining a roof over your childrens heads than any toher factor. However the fact that she has re-married lessens any claims she may have over the portion of the assets that still legally belong to you. The only way to enforce what you want is to make an application for ancillary relief to the court. I suggest you get some live advice from a Solicitor on this matter.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I,ve moved out of the marital home and the mortgage was transferred into my husband's name. I have mortgage on another property. My solicitor has informed me that I still have an interest in the marital home now that we are getting divorced and my name is listed at the land registry office as having an interest. Does this mean that my husband cannot sell the house. Should it be up to him what he markets the house for and what he accepts an offer for or should I have some say in this. I beleive he has put it on the market for less than it's value. How far down the orad will he get before anyone remembers that I have an interest in it. What does this mean exactly. Can he just accept any offer or could I get an independant valuation done?? Any advise would be appreciated. thanks
A.	If no order has been made which has dealt with the marital finances then potentially it is still possible for you to make a claim against the former matrimonial home. However all the assets of the marriage will be considered by the Court if you and your Husband cannot agree a settlement. If your solicitor has registered your interest in the property at the Land Registry then that will alert any potential buyer to that fact and it is unlikely that a sale would proceed without the issue being resolved. It would also be prudent for your solicitor to perhaps advise the Estate Agents or your husband’ solicitor of the situation. Within financial proceedings you would have an opportunity to obtain your own valuation if you do not agree the one your Husband has obtained.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My partner and of three years to whom I have one son by have recently seperated(we were never married). We have a mortgage on a house in joint names although my partner provided the financial backing and has paid the mortgage from a joint bank account.My partner however is still married to his wife who he seperated from approx 4 years ago. If my partner and his wife were to divorce what claim on the property would she have as his wife and where would I stand with being on the mortgage if the house were to be sold or rented out? His wife now lives with her boyfriend in a housing association property with her four children. I live with my parents. Yours hopefully, Jenny
A.	His share of the house could be taken into account in divorce proceedings with his wife. On the face of it if the property is in joint names you are entitled to an equal share in the same in the absence of any trust deed which may define how the shares are to be held. You could try and pursue part of your partner’s share under the Children Act. However, that would be a claim for a child rather than yourself. I would seek advice from a solicitor sooner rather than later. It may be that you have a greater need to live in the property than your ex partner.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	On the Prayer part of the divorce petition could you tell me please if I have to enter the address of the property next to Property Adjustment order?
A.	Yes you do have to put the address of the property for which an order may be made.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	Do I have to leave the marital home while the the divorce is going through? My door key was taken without me knowing so therefore I did not leave on my own free will...is it true that I can move back in until the divorce is final?? the house is in joint names and I am contributing to the mortgage.
A.	Whilst you are a joint owner of the property you have a legal right of entry into the property unless ordered by the Court not to do so. Whether you should exercise that right is another matter.You should seek formal legal advice about a potential return to the jointly owned property.I would need to know more about the dynamics of the relationship before I could advise further.Without full details of the reasons for the breakdown of the relationship I am unable to advise though I strongly recommend taking no action until someone considers all the facts. Frank
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	My son and his wife married in April 2000 and separated in August 2000. They purchased a shared ownership flat (50% owned by a housing association)in November 1999. She moved in after the wedding in April 2000 and left in August the same year. My son has paid all the deposit,purchase fees, mortgage repayments and housing association rent and maintenance charges. He has lived there from purchase (and still is). His wife agreed to transfer the flat and mortgage to his name shortly after the separation, but when presented with the transfer deed, she changed her mind. She now wants half of the value of the equity at current values. She is already living with someone else (although he was not involved in the break-up). Her salary is higher than my son's. 1. Would she be entitled to half the equity? 2. If so,will any payments my son has made be taken off the equity before it is shared? 3. Should the flat be valued at today's price or at the date of separation? (If she had signed the transfer when originally planned, there would have been no euity in the property). 4. Can he claim any 'maintenance' from her? 5. Can she force him to sell? 6. Can he force her to agree to transfer the flat into his name (and if so how much would this cost?)
A.	I assume you are asking whether her request is reasonable. I need full and frank disclosure of all capital assets prior to advising formally on financial matters. Without this however it does strike me as unfair. I think he in all probability will have no maintenance liability. The capital issue will depend on what other assets they have in there joint names. i.e. pensions, policies etc. On the assumption that they have only the house I advise that he reject the offer. He will have to consider whether he can make a counter offer and should definitely employ a solicitor who can make a cost benefit assessment of the case. She will be due a least a small amount. Hope this helps.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I work full time with an income in the region of 37K, my wife works part time with an income in the region of 5K. We have a son aged 14 and a daughter aged 12. We have a mortgage on a property of 94K, current property value 250K. My wife is in the process of divorcing me due to not supporting her emotionaly. My question is she wants to stay in the house and for me to move out. If I did that I would have insufficient money to provide a home for my son and me, pay the mortgage on our home and pay any Child Support for my daughter. Our home has got 4 bedrooms, so we can have one each. Can she force me to leave or can I make a stand and say that I can not afford to leave and stay in our home.
A.	She can only force you to leave by obtaining a final order within the divorce proceedings or by obtaining an injunction known as an occupation order. Without that you do not have to go. However it is unlikely that a Court would countenance such an arrangement in the long term . Likely orders which could be made are for her to stay in the house until the children are older and for you to have your ‘share’ at a later date. For the house to be sold and another home purchased for the children and her, with this she may need all the proceeds but once again you could get some money at a later date. However the benefit of that is that you will no longer be on the mortgage. I think that you need to go and see a solicitor to get some advice specific to your case as there could be pension issues as well as income factors such as your wife’s ability to work etc.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife wants us to 'split up'. I have just identified how expensive the process will be splitting all assets etc. She would like to keep our family home (4 bed detached)to house our 3 kids, which I feel is unreasonable. (I would prefer to sell the property and we both move 'down market' so that I can afford to pay two mortgages. If I 'dig my heals in' and refuse to leave home, what is the process/timescale for getting me evicted?
A.	If your wife petitions for divorce then within the main suit she can apply for ancillary relief. This application is separate from the divorce. If your local Court is not busy then I would imagine that having the application dealt with on the basis that it would go to a final hearing as it would not be agreed could mean the matter taking about 6-8 months. The divorce will probably not be made absolute until the finances are sorted. However bear in mind that if you act unreasonably and do not endeavour to deal with matters appropriately then there could be cost sanctions.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I'am divorced, we are in the process of dealing with finacial matters. The question I have is My Wife moved out of the the house for 6 months, and I paid the mortgage on my own, she would not contribute. She later discovered that I had a new partner (divorce proceeding still being processed). She said that she was going to move back to the house, I said that I would not stay In the house with her if she moved back in. When she moved back in, I found rented accommadation for me (My son from a previous relationship stays with me every other weekend and every wednesday). She then changed the locks two weeks later, without my consent, and denied me access to the property. She is now claiming that see wants me to pay half the mortgage that she has paid. I stated that I will not pay this monies because she ilegally changed the locks and denied me access to the property, and forced me to go and rent, I have stated that I will pay if she is willing to contribute to my rent. Can she do this.
A.	She can apply to the court under the Family Law Act 1996 for certain household outgoings to be paid or for interim maintenance on the divorce, if no final order has been made, although whether she would receive any is another matter. You need to get this dealt with as quickly as you can, and I suggest you obtain some legal advice on your own personal circulstances asap.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	my wife of 7years has a an affair for the past 2 year. we live in council property and my name is on the tenancy book, we have 2 children aged 6yrs and 1years. she is requesting that I move out of the house and sign the tenancy over to her, she says that this makes sence because in the long run she will win as she's the mother. I do not wish to do this as I would like to remain living in the property. The man she is having an affair with is willing to put her up but not the children but she wants to keep the children so that is why she wants the house but I would like to keep the house so I can have the children at weekends. There is also a chance I have been told that our son might be his child. There is no chance of us getting back together. I really don't know what to do, can you give me some advise
A.	When considering the transfer of tenancy, the court will have to take into account the needs of the parties and of the children for housing. The most likely scenario, would be the parent who has residence of the children would also obtain the tenancy of the property. If you seriously believe, you could look after the children and it would be in their long term best interests, you need to apply for a residence order for the children. It is unlikely that you would obtain the tenancy if you just wanted to keep it to see your children. You need to see a Family Lawyer ASAP.
Answered by: Simone Katzenberg, Solicitor
Q.	I was divorced from my first husband in 1989 and was given £40K in settlement.I used this money as a deposit on a flat.I sold this flat in 1991 but at the same price at which it was purchased.I remarried in December 1991 and purchased a house on which I put the £40K again as a deposit.The house is in my sole name and the deeds.Our marriage has never been a happy one although we have gone on for nearly 10 years.Ithas now reached the end with no chance of a reconcilliation.We have both contributed to the household expenditure.He is latting me stay in the house and taking our savings as a deposit for a new property.I am on long term disability and my income is £658 per month and may not increase.He has a thriving driving school business and his earnings can be in excess of £1600 nett per month.He is willing to leave but will not do so until I have signed a paper stating that I will not sell the house within 5 years or cohabit in that time.He is doing this as he feels entitled to half of the £40K and yet he did not make a contribution to the assetts on purchase (he was a bankrupt)Can he order me to sign a paper, has he rights to more money in view of the extremes of earnings?? I have phoned the DSS and am not allowed any additional income.My dissability has deteriorated with the stress forced upon me.Thank you for your help.
A.	You absolutely must go and see a lawyer as soon as possible and take legal advice. From what you've told me your husband is not necessarily entitled to anything from the house subject to him having something or some assets of his own. You must not sign or agree to anything under any circumstances without seeing a lawyer. A lawyer will be able to look at all the circumstances of your case and advise you accordingly. And I repeat DO NOT SIGN OR AGREE TO ANYTHING UNTIL YOU HAVE SEEN A LAWYER . Best of luck
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Separated more than 3 years ago. During negotiations,what value is taken for matrimonial home? Current value or as at date of separation (will have increased in value since split)? If as at date of separation, what happens to increase in value? I continue to live in home. Mortgage has been paid partly by Benefits Agency partly by me. (I have been on benefits or student throughout. Husband in very well paid job. 2 children living with me.)
A.	The court will take into account the current vale but has to consider all contribtions to the equity since the separation and indeed before.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am thinking of leaving the matrimonial home. We bought the house jointly 25 years ago. By leaving will I lose any rights to half the value of the property?
A.	No, it should not make any difference in the short term as the court looks at the needs of the parties, including their need for capital and income and of course housing.
Answered by: Simone Katzenberg, Solicitor
Q.	This is probably a very niave question - but I have to start somwhere..... My wife claims that she can just walk out of our marriage and thereby force me to sell the house and split the proceedings 50:50; is this legally correct? We have been married for 24 years and she admits to having a sexual relationship with another man. I know this has been going on, and have been forced into accepting this as I do NOT want to divorce her. She retorts by saying she will just up-and-leave and force the house sale, against my will. It is a joint mortgage, although the mortgage is paid in full from my wage. My wife has an income from her job, as a district nurse, but all money from that goes into her own separate bank account, i.e. it is not a joint account. All my income goes into a joint account, to which she has access, but I do not have access to her account. Should not both accounts be "sharred" as we are married? Again, please apologies if I am niave. Just to repeat the main point - I do NOT want to divorce my wife (even though I am not altogether happy with our circumstances), but can she legally just "walk-out" and force me in to selling up? PLEASE advise, as I am in quandary and need advice as soon as possible. Thank You, Steve.
A.	Your wife can just walk out but what she can't do is necessarily force you to sell the house. If she wants a divorce and you don't she could sue you for divorce and eventually she would get it. If the two of you can't reach an agreement as to how the assets are to be divided, eventually one of you will make an application to court and the court will decide. However not wishing to sound too negative, most people do eventually reach an agreement without the need of a full blown trial. After all the more the two of you argue, the more is spent on legal fees and the less there is in the pot for division between you. Before it can be decided how the assets should be divided you will both be required to give what is called full financial disclosure where you both have to disclose everything about your finances. There is no fixed rule on everything being divided 50:50 but one has to look at the particular circumstances in each case. I really do suggest that you seek independent legal advice. In this way you can discuss it all and be properly advised as to what steps should be taken or not. Make sure that any solicitor that you see is a member of the Solicitors Family Law Association i.e. experienced in dealing with these matters. You may also may find my book "I want a divorce?" helpful - even though I know you say you don't want a divorce, it does deal with the emotional issues as well as explain the financial side. Good luck
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I'm writing on behalf of my mother who received her decree absolute in April of this year. This terms of the divorce was that my mother and younger brother would be allowed to occupy the martial home until my younger brother was 18 and then the house would be sold with the proceeds split. My question is that my mother has now been asked to sign a Declaration of Trust - which seems to cover the same information at the divorce papers. Why would she be asked to sign this declaration?
A.	This is for the deeds of the property to ensure that the trust is registered with the land registry to prevent anyone selling or dealing with the property.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have 3 children.6,4 & 2. Been married to the dad since 1995. Last July my husband left as I was suffering PND and he couldnt handle it, while he was away I started divorce proceedings but put them on hold in case it was wrong as I was still depressed. The grounds were Adultery as he commited this while away. Stupidly I took him back Xmas 2000 as he became homeless and it has gone down hill fast. I dont want to be with him, I dont want him in the house. He abuses me verbally and mentally and humiliates me. Can I still divorce him on the adultury grounds even tho I let him back into the house and how can I get him to leave. It is private rented and in both our names. Please help me...thanks.
A.	No you will have to use different grounds as you cannot use the fact of adultery, if in the meantime you have lived together. You will have to use unreasonable behaviour as the grounds. As for getting him out, you will have to apply for ancillary relief for a Property Transfer Order to transfer the tenancy into your name. If he has been violent or is causing you harm through mental cruelty, you should be able to obtain an in injunction to have him removed as you have a history of depression. You may be entitled to Legal Aid for this.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My boyfriend lives in the house which he jointly owns with his wife who left the marital home a year ago. He has paid the mortgage for this time. If he comes to stay with me, she goes back there with her new partner. He wants to come and live with me, but does not know what to do about their house. She is desperate to live in the house, and says it is her turn now, he has lived in it for a year, she should have the same length of time in it. She thinks he should make himself homeless to allow her to do this; I live 250 miles from him. She also wants to buy his share of the house, but is not creditworthy, and has a poorly paid job; she would not be able to get a mortgage. My boyfriend has offered to buy her share of the house. He would then let her rent it for a nominal rent (£50 per week) which would give her a chance to get her finances sorted out, at which point he would then sell her the house at a below market price. (He is prepared to get a legal agreement drawn up to guarantee his intentions) She has turned this offer down. My boyfriend is concerned that once in the house, she would not keep up mortgage payments, and furthermore would run up debts and in some way "black list" the house. Historically, she is very poor at money management. He is prepared to sell it on the open market, but she is adamant she wants to buy it and refuses to allow it to be sold. They seem to have reached stalemate, we want to get on with our lives but are unable to do so. He has just been made redundant, and is working on a monthly contract. The building society are willing to increase his mortgage whilst he is in employment but not if he becomes unemployed, this is adding an urgency to the situation. Do you have any suggestions? The market value of the house is £80,000 and they have a £10,000 mortgage. Many thanks Gillian Williams
A.	It is not clear from your question whether or not there are divorce proceedings. If there are then I would suggest that your boyfriend make an application to the Court for the property to be sold. If his wife does not agree then she would have to show the Court that she is able to buy his interest out. It would seem to me to be the best option for sale as then he does not need to worry about her raising the money. I don’t think it would necessarily be a good idea for him to move out as if she gets in the property it may be difficult to get her to co-operate with a sale even if it is ordered by the Court. You do not say whether there are any children, the age of the parties or length of marriage, these factors and more will have an impact on how the proceeds are divided. If there are no divorce proceedings there is still a way to apply for the property to be sold. Your boyfriend will need to see a solicitor for either application in all likelihood.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	By mutual consent my wife obtained three valuations of our matrimonial home ready for a court appearance. The three valuations were filed and served by us both as part of the Form E proceedings. We took the average of the three as the valuation. My wife's solicitor is now trying to discard one of the valuations ( strangeley the highest)saying it is only on the estate agents headed note pad and not on their letter headed paper. It was good enough when filed and served with form E, are they likely to be able to have the valuation withdrawn?
A.	It depends on the judge and whether he thinks there is any difference between the notepad and headed notepaper. Why don't you get the Agent to re-print the valuation on headed notepaper?
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am at my wits end my partner left his wife 10 months ago, they started divorce proceedings in November he is still paying all the utility bills and the mortgage also her cable TV. I am keeping him, paying all bills, feeding and clothing him he has a Solicitor. He tells me his Solicitor has advised him to carry on paying all the bills. There are no children and she has a full time job, the house has not even been put on the market in the meantime I am getting deeper in debt.Why would he have to continue paying all the bills? I feel like he is not being honest!
A.	This does not sound like good advice to me. If his ex is working and there are no children, then she should be making some contribution towards the household bills. The Solicitor is probably wary of him withdrawing payments, to avoid the mortgage not being paid until the matter has been settled. Your partner needs to be more assertive with his solicitor, to ensure the matter does not drag on. if negotations are going nowhere, then he needs to consider taking the matter to trial.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband left me three months ago and is now living with his girlfriend, who lives with her parents. He denies living with her and that she is helping him out financially. I can prove what he is denying. How would her salary be included in the calculation of my spousal maintenance and because he is living in her parents house, how would the courts view his housing arrangements? Can you also advise me how the contents of the house maybe be divided. Would it 50/50 split? Regards EW
A.	The court will only take her salary into account as far as his outgoings are concerned, not her salary as such. In your situation, he would appear to have lower outgoings because of his cohabitation and that may mean he would have more disposable income to pay spouse maintenance. You do not say how long you have been married or whether you have children and It would be difficult to advise you on your capital entitlement. You need to get independent legal advice.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My friend is in the middle of a very acrimnonious divorce. His wife left a year ago and is living with another man and has since had a child by him. Her new partner is very financially secure. My friend lives in the matrimonial home with their 11 year old son who he has a residencey order for. The house must be sold as repossesion is imminent ( a buyer has been found) His wife is refusing to sign the sale papers under any circumstances. My friends solicitor says she can apply to the court for the sale papers to be signed by the court but this would leave my friend homeless unless he is allowed to use the equity towards the purchase of a home for himself and his son. However, we are told that the courts cannot order that the equity be used for this purpose due to the results of the case Wicks V Wicks. I have been unable to find anything other than very brief references to this case cited. How can this be? My friend and his son will be homeless, he is on low income with no savings.She is well housed and provided for. Do you have any suggestions that could help him? Many thanks for taking the time to read this. Lisa Skeet-Marriott
A.	I am afraid that to give any definitive advice in this case is impossible as I am not in receipt of all the facts. I am not aware of whether there is an application before the Court for substantive financial relief. If there is then the Court could decide within that application that the proceeds could be used for a new purchase. If there is no application before the Court then there is probably not enough time for this to be made, prior to the Court action in respect of the house. What could happen is that the proceeds of sale could be placed upon deposit whist an application is made to determine how they are to be divided. I appreciate that this would mean your friend being in rented accommodation for some time but ultimately he will get something from the proceeds and if he can show that his ex wife behaved unreasonably then there could perhaps be costs sanctions against her. However I stress that I do not know enough about the case and he should discuss this with his own solicitor.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	12 months ago I was left single after a 12 year relationship (not married). I have bought a house and recently meet someone new. My new partner has found a new job local to me and would like to move in. This I have no problem with. How should I approach this and what is my legal position. My partner has agreed to pay me rent on a monthly basis and I have enough bed rooms to make one of them hers. I don’t have a problem with commitment but I would like to make sure that if this relationship doesn’t work that I will not be left homeless
A.	You need to make it clear from the start that she will not be entitled to any benefit from the property by virtue of your cohabitation or her making payments to you in respect of the property. I suggest you enter into a cohabitation agreement or deed of trust which will set out what the financial arrangements would be if you split up at a later date. This can always be varied at a later date to reflect changes in your circumstances.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My decree absolute is due early June.Despite several months of trying to negotiate a financial settlement with my husband I am no clearer as to whether he has agreed to my offer (which equates to a 25% settlement). I am prepared to sign the marital home over to my husband in return for a lump sum payment - clean break - no maintainance or children involved. I am also planning to get re-married quite soon after my divorce. My solicitor has advised me that a financial application must be made before I am re-married. She has also advised me that although I will still be entitled to a financial settlement my re-marriage could affect the amount. Is this correct? Also, if I submit an application to the court for the 25% settlement and my husband continues to delay things, can I then approach the court for a 50% settlement even if I am re-married or my re-marriage disbar me from doing this? Would it be better to apply for a 50% settlement from the outset and let him negotiate me down (I dont want to put myself into a corner by applying for a lower settlement not being able to change my mind if he drags his feet and the legal bill increases). The amount I have suggested to my husband is readily available in the form of a joint investment. This was the residue of money left to my husband by his mother - we invested it in joint names. Do I have a legal claim on this money? Could the court force my husband to consent to this investment being cashed in and the amount relinquished to me (it would be much easier than getting him to sell the house which he still lives in) many thanks
A.	You have to issue before you remarry as there is a legal bar to applications being made after this. Re-marriage can and does affect a settlement particularly if your new husband has assets. Clearly if you remarry there will be no maintenance entitlement. Your application should set out what you are asking for so it may be difficult to provide for all options as you describe. I would speak to your solicitor about this as he or she is more familiar with the case than I. The Court can make an order for a lump sum against your husband they do not necessarily have to direct how or from where it is paid. However if he does not pay it you have a number of options to pursue, ie to force the investment to be encashed or for him to sell up. As I said talk to your solicitor as you are paying them to do a job for you!!
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I've admited adultery to my husband and he will file for divorce on these grounds. Do I have the right to financial claims if I am the one to blaim? We only recently bought a house in joint names which he wants to keep and I agreed to sign my half to him but I want back the money I invested in the house. My husband has no money to give me at the moment. How can we reach an agreement? If I sign my mortgage over to him will I be able to claim money on this ground after the divorce papers have gone through. Can I have any financial claims at all after the divorce is finalised?
A.	By admitting adultery, this will have no effect on your financial claims whatsoever and if he will not agree to a settlement, you can apply to the court to determine the outcome. I suggest you hold off signing over the mortgage or house until you have received legal advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I hope you can help me. I want to get divorced from my wife sadly. I work full time earning £25,000 a year and she works part time earning around £4,000 a year we have a 4 year old son. We have a house mortgaged for £60k and we owe £59k as we have had it for 3 years this June and the house is in both our names. When I move out she will quit her job and claim for benefits. I want to move out and rent alternative accomodation, the problem is, I can't afford to pay the mortgage and rent a place as well and pay the childsupport. Is there any other solution? I would like my wife to take over the house as they need a place to live but if I can't pay the house will be repposessed. I imagine the courts will give her the house but if she is not earning who will pay the mortgage? WIll I have to pay all of it or can I pay a small contribution or nothing at all? I hope you can advise me.
A.	If your wife is going on to Income Support, the DSS will be required to pay the interest on the mortgage. However if her Child Support payments exceed Income Support limits, that will stop and she will have to pay the mortgage from the money received from Child Support payments. She may then be entitled to a measure of spousal maintenance from you to cover the balance. I suggest you obtain a Solicitors advice as soon as possible on the various options that present themselves.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I moved in with my partner about a year ago, we have both been married and divorced, I have two adult children and he has two adult children, and two under 16 who live with their mother, his ex wife, whom he supports financially. I rather imagined that the law would treat me like a wife if anything should happen, but a friend recently told me that if he were to die (he is 60 I am 50), I might have to leave the house we live in (everything is in his name)and if he met someone else he could just turf me out! Hopefully this won't happen, but I feel I should aquaint myself with my rights if I have any. He made a will when he was divorced which I assume leaves everything to the children.
A.	As a cohabitee you have very limited rights to either the property or to his estate should he die. While he is alive, he could make you leave at anytime and there would very little that could be done. you would have to apply to the court for an order declaring that you have an interest in the property and how much. That would depend on your contribution to such things as the mortgage, bills etc. If he were to die, you would have to bring a claim under the Inheritance Act to overturn the will on the basis that you were maintained by him during his lifetime and should be continuing to be maintained by the estate. His children would have priority. You need to have him agree to change the deeds to apportion a percentage of the property to you as a Tenant in Common and also for him to change his will to include you, should he die.
Answered by: Tracy McCormack, Solicitor
Q.	I have for sometime now been seriously considering divorcing my wife of 6 years, which I now believe as broken down beyond repair. There are certain issues which I need to get straight before I can proceed one being financial. We have two children(11&8). 3 years ago we purchased our house, but the mortgage is in my name solely, due to the fact of my wifes credit rating, which stopped us getting a joint mortgage. Having spoken to the Mortgage providers & informed that she could not take on the mortgage(credit rating etc), I believe we have two options 1) she moves out(but she wont) or 2)we sell the house(which i really dont want to do).Could you please advise me is there any legal way of having her removed from the house or what could she do to stop me selling the house. I understand that shes entitled to half of the proceed, But she could not afford to keep the house on nor could i to pay for the house & somewhere else as well. Thanks very much for your help.
A.	You do not give full information about your financial position for an accurate answer, however if this matter came before the court then the first concern would be the children's need for housing. It may be that your wife may be entitled to more than 50% of the house proceeds, but this would depend on the overall finances of the marriage. You need to seek the advice of a specialist solicitor and remember to take with you as much information as possible concerning the finances of both yourself and your wife.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Here is a tough one for you! A man is co-habiting with female partner in the UK, but she owns a property in Austria with an outstanding mortgage. He is helping towards that mortgage by paying all her bills in the house in the UK. If they parted, does he have any share in the Austrian property? Good luck and many thanks if you are able to help
A.	My initial view would be no because there is no direct link between the two properties and there is no trust for sale between you for the Austrian property. You would however have a good argument for retaining the majority of the equity in the UK property on the basis you have contributed the total of the mortgage payments and upkeep and should therefore receive the equity less any initial capital contribution from her for the deposit. You will need to see a Solicitor if you wish to take this further.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I own a flat as a joint tenant with my boyfriend (whereby, should one of us die, the flat automatically reverts ownership to the other). We have been there almost a year, and I am considering breaking up. I would like to know what my rights are in respect of the flat. We currently pay interest only on our mortgage (which he is saying would be akin to rent), We also both pay money monthly into an investment vehicle for saving toward principal repayment. The flat (I would estimate) has appreciated around £25k since purchase. I could not afford to keep the flat myself, but he could, so would continue living there and (I'm assuming) I would have to sign the mortgage over to him. Please let me know what I am entitled to before I make my final decision, and what stepd I would need to take. Many thanks for your help
A.	Strictly speaking you are entitled to 50% of the value of the flat less the mortgage. You are also entitled to 50% of the value of the repayment vehicle. Once you have agreed a figure, you need to consider who will pay the legal costs of the transfer of Equity for which you will need a Solicitor. I suggest you both approach the mortgage lender to see if it is viable for him to take over an increased mortgage that reflects the settlement to you. If this is not viable, the property will have to be sold and you can make him sell if he refuses to do so, but you will need a Solicitor for this. For more detailed advice please feel free to use our LegalAssist service to obtain a free consultation with a Solicitor in your local area.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am married to a soldier and living in an Army House in Salisbury. We have separated and I would like to move up to my home town of Manchester. We own a house which has tenants in but I could move in to the house in July. I will have to leave my full time employment here but will be looking for work as soon as I move. I will not be able to pay the mortgage immediately I move in. Am I entitled to help while I search for work?
A.	You do not say how long you were married, but generally speaking you may be entitled to some maintenance for yourself whilst you find work. You also need to work out what will happen to the house once you have separated as far as ownership and the equity is concerned. You may be entitled to some of your husbands pension. I suggest you put all your assets and liabilities on to paper and go and get a Solicitors opinion on your exact circumstances.
Answered by: Simone Katzenberg, Solicitor
Q.	I have had a notice a under the Family Law Act placed on my property claiming matrimonial home rights. I have contacted the solicitor who placed the notice and after six months he is still unable to contact his client. Can I force him to have the records at HM Land Registry corrected as he cannot contact his client or prove that he has instructions from his client to maintain the notice with his address as a point of contact
A.	It has nothing to do with the solicitor. He or she is entitled to lodge a caution if the property was the matrimonial home and if the finances are not resolved. If this is the case, you should see a solicitor and get the divorcee and resolution of the finances dealt with.
Answered by: Tracy McCormack, Solicitor
Q.	I left my husband in Feb 2000. I took both of my children and moved in with somebody else. Since then I have granted my husband residence of my 11 year old son and my 8 year old daughter is living with me and my new partner (neither children are the biological children of my husband even though they were born whilst we were married). I applied for a divorce on grounds of his unreasonable behaviour in June 2000 and now have a court date for trial next month (April 01). Since I left the matrimonial home I have become pregnant to my new partner (baby due April 01). In the past year my husband has been out of work for the past 6 months and is claiming benefit. He also has not paid nine months of the twelve months mortgage. I do not work and am totally reliant on my partner (so is my daughter). I do not receive any maintenance. My partner has spent in excess on 10k in my solicitors bills. The former matromonial home is just being sold and there will be approx £60k equity. I would like to know what possible settlement I am likely to expect. My husbands solicitors are saying that he needs all the equity to purchase another house (as he is out of work). They are also saying that he will need all the contents of the house. My new partner owns the house we live in but I have signed away all my rights to any of it. If he decides to throw me out, my daughter and I do not have anything other than our clothes. I am therefore concerned about mine and my daughters security as my solicitor is insisting that because we have a roof over our heads (now), that this is all the security I can expect. I am at my wits end with all this legal wrangle. If you can, any advice you can give me I would be very gratefully received. Also, my husband has already sold the family car and taken all £8,000 and he has run up 10k in mortgage arrears and has been selling off items in the home and giving away some of my daughters things. Many thanks for any advice you can offer. Sharon
A.	It is not possible to give you specific advice on your likely settlement as you have not given sufficient information. I can give some general guidance on the matters that the court will take into account and the types of orders that the court can make. The court when considering financial matters has to take account of a variety of factors but the judge in each case has a discretion as to what weight he gives to those factors. The types of things that will be considered are as follows:- 1.Your ages and the length of your marriage 2.Your current incomes, outgoings, debts and assets 3.Your contributions during the marriage 4.Your needs and those of the children living with you If it is correct that your husband cannot re house himself and your son without receiving all the sale proceeds and in fact you are living with your partner, albeit without any legal interest in his home, it is likely that the court will consider your husbands need to house himself and your son as the first priority. If your husband does receive the benefit of the sale proceeds at this time, it does not necessarily mean that you cannot receive some of them in the future. It is possible for the court to give you what is known as a deferred charge over the new property that your husband purchases. This would mean that at some specified time in the future you would receive your share of the sale proceeds. For example the court could order that upon your son reaching the age of 18 and ceasing full time education your husband has to pay you your share or sell the property to raise the money to pay you. This is however only an example of the type of order the court could make and this would be very much dependent on the overall facts of the case. I would strongly suggest that you do discuss this with your solicitor who should have all the relevant information.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife and I have been married for nine years, we have two sons aged six and four. Over the last two years , we have drifted apart, and by mutual consent, started seeing other people. This has caused some conflict in our relationship, and my wife now wishes to have a seperation with a view to divorce some time later. We live in a house the mortgage for which is in both our names, my wife earns considerably more than I do, hence is able to contribute more financially to the home and children's upkeep. She states that since I cannot afford the mortgage payments etc on my salary alone, and she could..that I should be the one to move out. I do not wish to do this as it means leaving my children. My questions are: 1. Can she legally force me to leave my home 2. Were she to leave, would it be reasonable to expect her to keep up her financial contributions to the home to support the children and I many thanks
A.	Your wife can only legally force you to leave the property by applying for an occupation order against you. However to do this she must be able to show the Court that she or the children are at risk of significant harm from you. If she cannot then you will be able to stay. Within divorce proceedings it is possible to obtain an order for transfer of property or sale of the same and therefore this could mean that you end up having to move out. At the present time you do not have to go. If she were to leave the home she would be liable to pay maintenance for the children. If she earns substantially more than you do then she could be liable to pay spousal maintenance. What other liabilities she is responsible for is a grey area I am afraid and I would advise you to seek advice from a solicitor in order to clarify the position. They can consider all the facts and figures and give you appropriate advice in return.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I are currently separated following a difficult time during which she has had an affair (now ended). It was not my wish to separate though out of respect for her need for 'space', my love for her and wish for our marriage to succeed, I conceeded. It is her contention that the sole purpose of the separation is to learn to get on and that I will definately be returning to the family home, whereupon we will begin to try to piece our marriage back together. My wife has consulted a solicitor, though it is my understanding only for advice and that she has no intention of filing for divorce. I know that these things take time, I am prepared to give her as much time as she needs, I am concerned however that there may be a period of time after which I lose the right to return to the family home. Essentially what I am concerned about is that knowing how I feel about her she is avoiding telling me anything different to 'yes of course I want you back, I'm just not ready yet', until she has in place a package that cannot be argued, I need to know, is there a period of time after which my home is no longer my home, and if so how long is it?
A.	There is no period of time which says when you can and should return home. Obviously the longer you stay away, the more difficult it would be emotionally and this could sway a court in an injuntion application. However as far as finances are concerned, you being away would not have any effect as long as you continued to make contributions to the house. You are entitled to enter the matrimonial home whenever you want as long as it is not to harass her. I hope your reconciliation is successful.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I separated about 15 months ago by mutual consent, and she moved away. We have a 3 year son who she visits once a month. She has just filed for divorce and is claiming half the value of the house. We have been married four years, I brought the house 5 years before we married, before I had even met her, and it is in my name. She never paid any mortgage payments, any household bills, food bills etc. We separated when she left university ( I paid some of her course fees)and therefore only started working after we separated. Is she entitled to half the value of the house, she has just put in an application for a charge on the house. I will continue to look after our son
A.	The answer is probably no, because you are looking after your son. However it depends on what other assets there are, what income you both have in terms of mortgage raising ability and what your respective needs are as far as housing is concerned. It is not a case of an automatic 50/50 split in any event, regardless of the fact you have a son. The court has to look at a number of factors which are contained in a checklist. (see process-applications on the web site in the left hand menus). You need to get more specific legal advice from a Solicitor
Answered by: Simone Katzenberg, Solicitor
Q.	After a 5-year marriage my husband left the family home over 13 months ago. We had a jointly appointed formal valuation on the former matrimonial home in December 2000 as a basis for a settlement. I will pay him a share of the equity and remain in the house. He is trying to wriggle out of the formal valuation as he thinks it is too low. Personally I think it too high but I will accept it for a quick settlement. Is it actually possible for him to wriggle out of the valuation - I thought if it was jointly and formally requested then we just had to suck it and see. He doesn't want to settle and will do anything to delay things - is this just another delaying tactic? How can I speed things up? Can I force him into court and let the judge decide a settlement figure? Thanks for any help.
A.	If your husband is playing games and using delaying tactics, then the only thing you can do is issue divorce proceedings and at the same time, issue proceedings under the Ancillary Relief Rules for the finances to be dealt with. In that way the matter is strictly timetabled and either you will reach an agreement between you and if not, the court will make an order. The whole process is very conciliatory and geared up to helping people reach an agreement. Good luck
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My new partner was living with his ex-partner for eighteen years. Following the break up of their relationship they continued to live together for the sake of their son now eight years old. My partner had other relationships before i came on the scene but we do wish to persue a life otgether. However his ex-partner is saying that as they never married he has no rights regarding thier son with the exception of having to give her the home they now live in which is worth just over 300K. However since they did stop livig together as man and wife she has been climing income support while my partner has paid the mortgage and all household expenses. Obviously he does not want to lose all contact with his son and feels if he moves out of their home that he will do so. His ex-partner does not want their son to visit with his dad when i am around, however as we are planning to marry at some stage this is ineitable. WHat is his position regarding maintainence and division of property, will he have to pay maintainence for his ex-partner as well as the child, and will my earnigns and property be taken into account in this matter if we are not married? I have a property worth 220k and oly a very small mortgage. i do work part time.
A.	The law is different for couples who are not married. It depends on how the house was purchased. If they bought it as joint tenants in equity, then if she applied to the court the property would be divided equally, regardless of whether she works or not. She would have to apply to the court under the Children Act for a property transfer order in respect of the children. If an order were made it would be on the basis of need. If he could argue that they could live in a cheaper property, then he may be able to have the property sold and equity released, otherwise the property would be sold if she cohabited or remarried or when the child reached 18 or finished full time education, and he would receive his share of the property at that time. He has no obligation to pay her any maintenance only for the child, and as she is on benefits this is the jurisdiction of the CSA. Your earnings will not be taken into account. There is a Child Support Calculator on the website which will give you some idea of what he would have to pay in Child Support. As far as contact is concerned, he is able to apply to the court for two orders. A Parental Responsibility Order which will not be refused as the law is clear that it is always in the best interests of the child, save for exceptional circumstances. He would also more than likely succeed in getting a contact order to his son, if she continues being stupid about it. He should make an application for the property to be sold and he will need to instruct a Solicitor to do this.
Answered by: Simone Katzenberg, Solicitor
Q.	My husband and I are separating at my request. We can't go our separate ways until our house is sold though. He wants to buy another place as we sell this one but I’m worried because of the timing. If I have to leave before the completion date or if he hangs on because of problems buying his new place will leaving sooner harm me financially? I.e. will I still have to pay the mortgage even though I wouldn't be living there and couldn't afford it if I was living elsewhere anyway? Also if he changes his mind about selling if I leave before he does what can I do about that? Neither of us can afford the costs of the house alone.
A.	All your concerns about moving out before the matter is fully resolved are valid concerns. I would not recommend that you commit yourself to another purchase or move out until you have tied up the agreement properly i.e. through solicitors. You are right in assuming that you continue to be liable on the mortgage even though you don't live there. If your husband doesn't carry out his part of the agreement you could find yourself in difficulties. If he changes his mind after you have moved out, again you will be in a vulnerable position. Although legally it won't affect your rights, practically he can delay and makes things difficult. I think if you have decided to separate and divorce, then don't rush and do it properly. Make an appointment to see a family lawyer who will be able to guide you through the process.
Answered by: Simone Katzenberg, Solicitor
Q.	My Husband and myself separated in May 2000 after 6.5 years of marriage during which time we had 2 children now aged 6 and 3.We are still good friends and both have new partners (my husband is living with his partner in her council house. We have come to our own arrangements for access and maintenance, he pays £220 pick and sees the children 2 evenings a week while I am at work and all afternoon/evening on a Saturday while I am working. We are both happy with these arrangements although they have never been made legal. The only other issues were the house which we bought using the DIYSO scheme with a housing association (we bought 50% with an endowment mortgage), my husband has let me stay in the property and is willing to write to the Housing Association to have his name taken off of the tenancy agreement, however the building society will not allow his name to be taken off of the mortgage as my assessable income is not high enough (they did at least attach a note to file that I am actually paying the mortgage by myself with no help from anyone else).We had a joint bank account with an overdraft of approximately £1000, I had my name taken off of the joint account and my husband agreed to take on the overdraft as I had agreed to take up the outstanding repayments on a PC that we bought for our son. The only other issues are his pension, he has a company pension and a private pension which he wants me to leave alone as he has let me have the house and the other issue is the endowment policy, we took out a policy for £60,000 even though the mortgage is for £30,000 as we were told that that is what you have to do with shared equity schemes. The Direct Debit for the policy goes out of my husbands account (formerly our joint account) and I transfer my half towards it (£55) to this account every month. The idea being that we both carry on paying it and then split it when it matures in approx' 22 years time. The problem is that neither of us have the money to afford our own solicitors and although I am eligible for Legal Aid I do not want to peruse that option as I do not want a charge put on the house. I need to know what to do to make the arrangements that we have come to legally binding without having to pay a fortune to solicitors, which neither of us can afford. As far as Divorce/Separation goes I have tried unsuccessfully to Divorce my husband without using a solicitor on the grounds of adultery, which he will not admit to. My husband has also told me that if I amend the petition to unreasonable behaviour he will not admit to that either. Neither of us is in any hurry to remarry so we are considering legal separation as an option. Basically we just need to do things, as cheaply as possible but don't know how. Other information that may be relevant, I work 18 hours a week and claim Working Families Tax Credit, and my husbands income is approximately £18,000 per annum’s would be very grateful for any advice that you could give as I don't know where to turn and am finding it very stressful trying to deal with this while looking after 2 young children and running a house by myself. Thank you for your time from Vicky
A.	The problem about trying to do this all yourself is that, as you have found, its not as easy as it seems. I do think you should see a solicitor who will be able to deal with all the legalities for you. You can in a way monitor and keep control of your costs by using your solicitor effectively. Remember that each telephone call and letter is charged for and solicitors charge on a time basis for all their work so watch out for that.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am selling my house but I am not intending to buy another one immediately.Do I still have to get my own solicitor to deal with my side of the sale or can I deal with it myself?
A.	I would always advise you get a trained conveyancer to undertake any property transaction. It might look easy but I can assure you it is not. Can you draft a contract, Prepare a Transfer, Sellers Pack etc?. The answer will be no I presume. As it is a sale only it will not be overly expensive and I suggest you try our Conveyancing service on Divorce-Online which we think is very reasonable compared to the high street and other online services.
Answered by: Simone Katzenberg, Solicitor
Q.	I was forced out by my wife 3 months ago after 15 years, and have dealt with the necessary paperwork for the courts. She has had these but until last week refused to tell me what her intentions were. However I have now received a letter from her solicitor asking for details of several financial items, including a list of all my assets. My wife has been shouting about how she is entitled to "everything" in the house and has told me in no uncertain terms that I will get nothing. Now I am not a lawyer but I know this is rubbish and I intend to list every single thing in the house as half my property. The question is how do we go about splitting these things? If she wants these so badly can I ask her for half the cash value? She stands to get £25000 from the sale of the house so she could pay me off what the items are worth from that. Please advise. I don’t want the stuff but I have paid for most of it anyway, so can I claim the money from her?
A.	You can claim money from her but usually second hand household effects are not worth very much. The most practical way to deal with it would be for you to make an itinery and see which items can be agreed and then try and negotiate the remaining items. Don't look at household effects in isolation to the other assets. Everything falls into the matrimonial pot to be divided up. The first step should be for you both to provide financial disclosure i.e. disclose full details of all assets. Only then can one consider how to fairly divide it up. If you haven’t already seen a solicitor, I suggest that you do so. You will then be able to find out exactly what you have to do and what you are or are not entitled to.
Answered by: Simone Katzenberg, Solicitor
Q.	If the issue of property ownership has been settled amicably in discussions prior to divorce, how do I go about transferring the Title Deeds to myself from joint names? To keep the property do I need to apply for another mortgage?
A.	You need to make sure that whatever agreement you have reached is recorded in a formal document and that both of you have had the benefit of legal advice. If your partner has not taken legal advice, in theory, he or she could take steps to overturn the agreement. If you haven't started divorce proceedings and for some reason want to wait a while, you can both enter into what is called a Separation Agreement. In this, you will both have given each other full financial disclosure i.e. both disclose everything that you earn and own whether jointly or in sole names. The terms of the agreement are then recorded in the agreement. It is important to bear in mind that often the property is only one asset and finding the right solution to dividing assets on divorce, they should not b dealt with piecemeal but as part of a package. You will need to speak to the Mortgage Company about the mortgage and a conveyancing solicitor will deal with the transfer of the property. But as always it is better for you and your partner to seek independent legal advice before you do anything
Answered by: Simone Katzenberg, Solicitor
Q.	I have been married for nearly two years. After eighteen months, my wife decided to leave me and did so after 21 months of marriage. Whilst I appreciate that all settlements are different and subject to agreement or settlement in court, what is the worse case scenario in splitting our assets that can happen? We have no children; I purchased the house 1-year before we were married in my sole name although we both lived in the house from the start. I supported her through the first few months of living in the house (before marriage) before she got a job and then continued to pay all of the household bills including the mortgage thereafter. When she got a job, she paid for food and household consumables although I would assist when it got to the end of the month and her money ran out. We also eat out 2 or three times a week (Junk food mainly because she refused to cook things if they didn't heat up in the oven) which I would normally pay for. I would also pay for all items for the house and any large expenditure including repairs to her car and holidays. I earn more than double what my wife earns and since we were in a "life" long agreement was mostly happy with this arrangement. We evenly shared household chores and did our own washing and ironing if this matters. The house has increased in value by about £50k, I have pensions from my current job (value about £11k) and previous employers (£3k) I have also incurred about £15k worth of debt (loans and credit cards). All her income apart from that spent on food was spent on designer clothes and her car repayments. She has no assets of any value apart from her wardrobe. I also had to give her about £3k when she moved out to pay for rent on her new accommodation rent. I am concerned that everything that I have worked for will be split 50/50 even though our "life long marriage" agreement was brief and had I known that it was only going to be 18 months would not have risked half of my assets. If 50/50 is the case, I will be forced to sell the house in order to settle. Furthermore, if we cannot divorce for two years, will I have to split my future increase in wealth with her (i.e. if I pay off the loans and continue paying the mortgage) and future house price rises. I am not a Scrooge but now I need to look after No 1.
A.	It is difficult to give you a definitive answer without further information. All factors are taken into consideration when trying to work out a fair and equitable outcome on divorce. For example your respective ages and incomes are important. I can see no reason why you think you need to wait two years before you divorce. Given your circumstances, the sooner you do so the better. That is the only way to ensure finality and ensure that any future wealth does not fall into the pot to be divided between you. The worst case scenario could be a 50:50 split but I really can't say for sure without knowing more about your wife's circumstances as well as your own. I suggest that you see a solicitor as soon as possible, get on with the divorce if you are sure that there is no prospect of a reconciliation and within the divorce proceedings, sort out the division of assets.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife and I are considering divorce and it is very unlikely to be amicable. We have an 18 month old son. She works part time earning approx 7k and I earn 11k. The house is totally in my name and is estimated to be worth now about 120k. It was bought for 75k with me putting down a deposit of 40k. This money was what I had saved prior to being married. After 2 years of mortgage I then paid the mortgage off using my own money (A settlement from my work). I have since modernised the house using my own money to the tune of approx 15k. If we were to divorce could I sell the house (giving her a settlement from the sale in order to live somewhere else, presumably with our son) or can she prevent me from selling the house arguing that it is required for the security of her and our son etc?
A.	Check out the site for FAQ's on how the Court deal with finances. However in your case it is unlikely a sale can be prevented, as there is enough money for your wife to be rehoused. Bear in mind also that she does have a small mortgage ability. In your case I would seek advice from a lawyer as contribution before marriage in a short marriage is something that the Court will take into account. You appreciate that your wife has to house your son but you must also take into account the rather unequal contribution to capital in the marriage. Don't sell yourself short.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife and I are divorcing after 12 years marriage and a previous 3 years living together. I inherited a ready made family of 3 children who I have supported without any maintenance from their natural father. The youngest is 18 in January 2001. When we set up home I contributed £130,000 and a business I had started 12 years prior to us meeting and she contributed £65,000 of capital, all the capital was used to buy property. In a settlement is it likely that a court would consider the capital input brought to the marriage and award a settlement proportional to the input or is it going to go more like 50-50 shares. Thank you in advance
A.	Contribution is one factor the Court take into account when considering financial splits, as are length of marriage, age of parties, earning capacity of parties. I would advise you to check out the website for more information on this point. Without all the information from you I cannot be case specific but as the youngest child is 18 soon it is likely that the case will be dealt with on an equal basis, provided all other factors are equal. You do not say whether your wife has contributed to the business but this is certainly as asset the Court will consider if it's value is capable of being quantified. The three years prior to the marriage do not specifically count when considering the length of the relationship, only the length of marriage. My advise is to collate all financial information including pension provision and take advice.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife has decided she wants a divorce in the new year and to sell the house splitting the equity.The property is in my sole name,should she (as I suspect)decide against selling the property when it comes to it have any legal right to stop the sale? It is anticipated that she will take custody of our two young daughters,but she does occasionaly suggest that I keep them with me.Clearly she is confused and I feel that she is attempting to call my bluff but after 18mths + of this bartering I cannot take anymore and am quite prepared to grant her request.Where exactly do I stand in this? She is neither on the mortgage or the deeds to the property.Thanks very much for your help,and happy christmas to you all.
A.	You do not say how long you have been married. I would refer you to the FAQ's section of the site, which details what the Court take into account when considering financial matters. Obviously length of marriage and contribution prior to that if the marriage is short, may be applicable in your case. There are ways for your wife to prevent a sale of your home, before financial matters are dealt with. She can apply for a notice or caution to be lodged at the Land Registry that will alert a potential buyer to her interest in the property. Sometimes it is agreed between the parties that both will consent to the sale and then the proceeds would then be put on deposit pending resolution of financial matters. Bear in mind also that your wife has a right to occupy the property as long as you remain married. Sofaras the children are concerned no one can make this decision for you. If you think that the best place for the children is to live with you then it might not be right for you to sell the home. However you cannot just say that the children should live with you if it is merely to avoid your wife using them as pawn. I appreciate that it may be hard and you do not say whether as yet there are any proceedings issued. If not, it might be a good idea for you and your wife to attend a local mediation service.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	i am currently going through divorce and have been paying £600 per month for mortage and life insurance. I have loans and debts in my name from my marriage which total £20.000 which I can not repay. I have equity in my matrimonial home of about £40.000 which my wife states she will get to rehouse her and my daughter who is 4. There are 2 other children 15 and 13 from her previous marriage. How do I get through this financial nightmare ? Please help me.
A.	You don't say what your income is? What is her income? Do you have just debts or any assets?Like an endowment policy or a pension? How long the marriage was? Are you going to sell the former matrimonial home? How long is the marriage? How old are the parties? You need help and you need to provide full information to a solicitor as quickly as possible. The equity within the property does not necessarily have to be used to house your wife and child although there housing needs will be strong factor considered by the Court. Should you wish to instruct me formally so I can obtain proper information and advise you formally please do not hesitiate to contact me. Frank
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been separated from my husband for 17 years. In this time apart from child support, my husband has not contributed to any housing costs. He now wants a divorce and I have been asked to contact a solicitor because the house is in joint names. I have paid off the mortgage, cleared debts that he left me with and I am in possession of the house deeds. He is in a much better financial position, yet he contributed nothing to our daughter when she was at university.Is it likely that he will be entitled to a share in the house under these circumstances?
A.	It is difficult to see how he would be as he has made no contribution to the equity of the property. However the recent case of WHITE-V-WHITE means that the court will start off from a position of equality and then look at need ,contribution etc as a secondary position. The fact is he has rehoused himself and has more income and probably other capital assets which have to be taken into account as well as the house. The Court looks at all the assets at the time of the divorce not when you separated. If he has a Pension then you may be entitled to some of his pension. You need to see a Solicitor asap to begin the process of negotiation with your husband about the financial matters before you deal with the divorce. You will probably be advised to hold out until after 1st December so you can take advantage of the pension sharing rules.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	my husband left me last saturday. His whereabouts are unknown. He has a 11 yr old child whom he took with him. I have been informed that he wants to move back into our house with his new girlfriend and his child, and get me out, by telling the police that his child is in fear of her life from me, that i am violent and am planning to poison her. can he remove me from our home? I am not violent and would never harm his child
A.	To have you removed quickly your Husband would have to apply for an Occupation Order under the family Law Act 1996. Or for an order under The Children Act for a property transfer order. The Court will not make an order unless he or the child are at risk from significant harm. He would have to prove this is reasonably probable in a contested hearing with evidence. You do not say who owns the property or how long you have been married so we are unable to go into any further detail. You need to get an appointment with a local Solicitor asap and I suggest you try solicitorsonline.com where you will find local Solicitors who undertake legal Aid work in this area of law.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	I have recently separated from my husband. We shared a house that was mortaged in both our names. I have moved out of house and into rented accommodation. We intend to sell the house, but until then I wish to know what I am legally required to contribute to its upkeep. Both my husband & I are employed full time earning similar salaries.
A.	You will no doubt be legal obligated under the mortgage to make payments toward the mortgage. I would really need to read the terms of the mortgage. Generally you will be jointly and severally liable. This means that you will be able to be sued together or individually if you default. Practically your husband has the benefit of living in the property and should therefore maintain it.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My partner wishes to divorce his wife and she has agreed to this, on the grounds of 5 years of living apart. He has offered her the use of his house for the rest of her life and he will continue to maintain her and pay her bills as he currently does. Would this be acceptable to the court please?
A.	Your partner should have the agreement reviewed by a Solicitor as there may be other matters which need to be looked at such as pension provision. She does not have to take their advice but it would assist her in knowing that she is receiving her entitlement. He has met her housing needs by giving her a life interest in the house but what would happen to the bills if he dies?
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	My wife moved out of our home 3 1/2 years ago and has not paid anything towards the mortgage since. I have a residence order in my favour in respect of our 2 children. She has staying contact. we are attempting to settle the assets, which basically amounts to the house. Since she left, the value has risen from £135,000 to £220,000. The judge dealing with our case has indicated that the payments I have maintained on the mortgage since she left are irrelevant as they are interest only. Is this really the case? Also she has stated that the endowment surrender values will be split evenly, even though one was carried forward by me from a house prior to our marriage (we married in Oct '95) and I have paid them since she left. Is this also the case?
A.	There is now an arguable case that the starting point of ancillary relief cases should be equality. The learned Judge should not ignore your financial contribution to the mortgage interest or otherwise. Indeed the learned Judge is under a duty to consider your financial contribution pursuant to s.25 (f) Matrimonial Causes Act 1973. The same argument should be put forward in respect of the endowments. The strongest arguments to place before the learned Judge would be your needs in respect of housing you and your children and the short duration of the marriage. You do not say what the respect income positions are, what the relative capital contributions are, what are her housing and financial needs, and when the learned Judge made the comments you attribute to the learned Judge, presumably at a Financial Dispute Resolution Appointment? Given the requirement for further information it is really impossible to ascertain whether the learned Judge has erred.I recommend that you contact a solicitor. I am able to advise on a formal basis via e-mail. Frank.
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
Q.	My husband and I wish to separate (a mutual agreement as we have drifted apart) after five and a half years of marriage. We are currently still living in the same house which is paid for and in my husbands name. We have no children, but I understand I would still be entitled to half of the house. Is this correct and does it make any difference if I move out, which I plan to do as soon as financially possible?
A.	You may have created an equitable interest in the property. This will depend on how you contributed to the property. Was it in money? Was it in moneys worth? Was there an express agreement that you would have an interest in the home?On the information provided it is difficult to assess exactly what the position is. Should you want further advice you can instruct me by e-mail and I will request all the necessary information and evidence from you to properly advise on a formal basis. It is essential that you get advice on your interest as quickly as possible. If you intend to leave you should at least register a caution at the Land Registry so the property cannot be dealt with in your absence.I hope to hear from you on a formal basis. Frank
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	I have separated from my wife who has moved out of our family home into rented accomodation. I have decided to sell our house (which is in both names) because i feel i can no longer afford to stay there. What are my options in (A) buying my wife's share of the property and (B) splitting the value of sale? The house was bought for 56K and is now valued on the market at 78K. My wife has a 9 year old son (but I'm not the natural father, neither have I adopted him) - does this affect the share of money she can claim when the house is sold?
A.	Firstly, As this is the family home, and your wife is a mortgagee, it would be difficult to sell the home without an amicable agreement to do so. You could, of course, offer to buy out your spouses' share or indeed sell the house and split the equity, however you would have difficulty, without the agreement of your spouse. Your intention to do either of these can be included in the ancillary relief part of divorce proceedings and if there is dissent, can be ordered by the court. It must be noted, however that a court would be extremely reluctant to order a sale whilst there are children involved, and in many cases put off an order for sale until the youngest child is of age. Secondly, as the child is a step child, the CSA will not proceed but as far as divorce proceedings are concerned, then the child will be regarded as 'a child of the family' and will be a consideration in ancillary relief issues. This will certainly put your spouse in a stronger position. Please do not hesitate to contact us if we can be of further assistance.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	Have I got any claim on the property we have shared for the last five years, even though we are not married, I paid £300 per month towards mortgage and bills and helped with the up keep of the house we have a four year old daughter. Please help?
A.	Very complicated area of law and not possible to give advice on this point without substantial background history to the relationship. The law is governed by whether you have established a constructive trust, a beneficial interest or reversionary interest. I.e has what you have contributed given you a right to any equity in the property. My advice is to go and see specialist in this area as soon as possible. The above applies to claims you may have yourself. You can also get advice on whether you can pursue a claim under the Children Act for a lump sum for your daughter. Any monies received under this application will be for her benefit.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My Husband has left the family home and has been gone now for over a week. I have 2 young children who he has not been in contact with. I have tried to contact him on the last ocassion it was to find out he was going abroad on business. I understand he will be back in the Uk shortly. This is not the first time he has left but has come back previously with appologies and him saying he doesnt know why he does it. I have spent this past week in mental turmoil but have carried on with all the normall things for the sake of my sanity and the children. Taking them to school, parents evenings, etc., I am positive that this is the last time that he should do this. I feel like the last 5 years of my life have been like on a yo yo up and down depending on how he feels. Please advise me that should he again return do I have to legally let him back into the house. The house was bought in joint names. At this present time I dont even know where he is. Please could you advise me where I stand on this legally about opening the door when and if he knocks and where I go from now.
A.	If your Husband is a joint owner of the property then he is entitled to enter the property, as long as he makes good any damage if he breaks in. However you may have grounds to apply for an occupation order to prevent him returning. I have to say that these orders are not easy to obtain. You have to show the Court that you or the children are at risk of significant harm as a result of your husband's behaviour. This 'harm' can be emotional or physical. In view of his behaviour you may have grounds for divorce. In order for you to assess all your options it may be a good idea for you to seek legal advice on an initial basis.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	In a recently submitted question to which you gave me some useful information,you did not make it clear if my wife is infact entitled to all the equity from the sale of our home which is in my sole name.She claims,that having care of our two daughters entitles her to 100% but She says she will accept 50%.Is she entitled to 100%? Furthermore,is it necessary to put in writing all agreements as to care of the children,maintenance payments,acceptance of a lump sum payment from the property sale etc. My wife is playing very cool and wants an amicable divorce and at the moment lives a seperate life from me but continues to wash cook and clean as a "normal" wife would. I would like to divorce my wife but with my commitments and being unable to obtain legal aid,I cannot afford the costs involved. She refuses to divorce me and questions why I want to go that far,but their has been no physical relationship between us since 1997 this being totaly on her part.I realise this in its own right is a ground for divorce,but at the moment I feel totaly trapped.Any suggestions would be gratefuly received.
A.	Your wife would more than likely be able to claim in excess of 50% if that would mean securing a reasonable home for her and the children. It is unlikely to be 100% unless she can show you can rehouse yourself on other capital available and from your income. It would be advisable to get everything agreed in writing and with the benefit of legal advice. This can be way of a separation agreement, which should not cost a great deal (less than £400.00). You would have grounds for divorce on her unreasonable behaviour if she is intent on leading seperate lives and is denying you love and affection.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	My wife and I are planning to seperate. We have three children two of which are in full time employment and the other 14 years old. We both work full time and have approx £11,000 morgtage on a house worth approx 45,000. The plan is for me to move out and buy a flat. My wife is not in a position to pay me my share of the house. But to be able to get a large enough mortgage the building society has said the house should be in her name, if my name is still on the present mortgage, the amount owing is deducted from the amount I can borrow. Since we intended to wait 2 years before we divorced on separtion grounds, should I get deed of seperation before I get the house deeds in her name. We have split all our assets, agreed child maintiance and have to an agreement for me to get my share of the house when the children have all grown up. If I managed to get a large enough mortgage without getting the present mortgage in her name ( she has agreed to take over the payments) and I brought a flat solely in my name, in two years time when we came to get divorced would I be entilted to a share in our present home and would she have any claim on the flat I plan to buy. Thanks in advance
A.	Firstly, it would be a good idea to have the separation formalised by way of agreement or deed if you are decided upon this route. Secondly, as you may be aware, all ancillary matters can be agreed upon before divorce is finalised, the question of property included. Mutually acceptable arrangements should be drawn up within the separation deed, such agreements are likely to be upheld by the courts upon finalisation of a divorce, unless of course there are exceptional circumstances to consider, (ie one party has not been wholly truthful when declaring assets or the position of one party has substantially changed.) With regard to your query, If you kept your name on the mortgage, but your wife makes the payments, then you of course would be entitled to a share of the property but likely to be deducted from your share would be the portion which you wife pays solely (including equity accrued therein). If it is agreed that you then purchase a second property upon the premise that you wife would have no claim, then it is unlikely that this would be varied, unless of course, exceptional circumstances apply. Property matters can give rise to complications in many situations, therefore it is always advisable to seek specialist legal advice before reaching a decision. Please do not hesitate to contact us if we can be of further assistance.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Considering divorce. We have been married for 3.5 years. I have spent most of this time working abroad, and my wife has remained working in UK. We agreed to live this because of the money that I could earn whilst overseas. I am due to arrive back in UK soon. I have recently learned that my wife has been having an affair in UK. During the past 3 years my wife and I have purchased some properties to let. Some of the properties are in my wife's name solely and some lower value ones are in my name solely. I have contibuted heavily towards paying the mortage for the properties in my wife's name. We both also own properties that we purchased prior to our marriage. Do I have any claims to the properties that are solely in my wife's name and vice versa but were acquired whilst we were married.
A.	All property purchased during the marriage whether in sole or joint names will be considered to be matrimonial property. You both have equally valid claims against each other for property or assets in your names, including pensions, shares, savings and of course income for maintenance purposes. See The Process-Applications for more information or search the database for more detailed guidance. You will have to seek legal advice if you are unable to reach agreement.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife left in Mar 98 to live with her lover. We were divorced this Apr. My ex wants her share in the house which I still live in. She currently lives in a house with her lover and our 2 children.I have seen my children virtually every weekend since she left and for the first six months following her departure the children lived in the matrimonial home with me. I am approx 10 mins away from where they all now live.The property market has jumped considerably since 98. I was left with Credit Card debts Money was stolen from B/S A/cs etc.I pay monthly amounts to the CSA.I have paid about £16,000.00 of mortgage payments since she left. She intends to marry this man. She has worked part-time since she left and will increase this when the youngest child starts school in Jan. His salary is double mine so financially they are quite comfortable. Q - What split would a judge order regarding the equity? Q - Would a judge take the Mortgage repayments into consideration? Q - Would a judge take into account his financial position bearing in mind they have been together since Mar 98? Q Would a judge order me to sell this property? This women is with a man several years younger than her she has already walked away from one solid relationship and did not even take our children with her which initially amazed me. I have been a backbone of stability for my children and I am very concerned about their well being in all of this. Our youngest child was not even two when she left.If this case goes to a full hearing I will consider asking a judge for the house to remain.Q - Is any judge likely to agree this.Also £20,000.00 was offered to my ex-wife over 1 year ago. This offer was never replied to by her or her solicitor.
A.	When considering financial matters I cannot say exactly what order the Judge would make. I would respectfully refer you to the site to the FAQ's for factors that must be considered by any Court when dealing with finances. The Judge would consider that the matrimonial home is somewhere the children stay when they are with you, but they will also consider whether your wife still remains on the mortgage; whether you are able to buy out her interest; the level of equity in the home; whether your wife and the children have secure housing. The Judge will consider that you have met the outgoings on the home since she left and also that attempts have been made by you to settle which have been ignored. Her cohabitee's position will be taken into account if the relationship is permanent as it appears to be. I do not know whether a sale would be ordered as all factors of the case need to be assessed. If it is the only asset of the marriage and you cannot buy your wife out then it may be likely.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	My female friend married a guy two years ago. As soon as they married he started physically, mentally and sexually abusing her. He became a drug addict and dealer. After 18 months of living together, they sold their first property and bought a smaller flat in joint names which he moved into whilst she moved home to her parents to get away from the abuse. She has never lived in the second property jointly purchased. She put her name on the mortgage as he did not earn enough to get the mortgage on his own and she would do anything just to get away from him, so she put her name on the mortgage. He moved a new partner in soon after and has since run up £34,000 of debt. My friend still pays £500 per month in joint loans and other credit all for property of which he has possession. She wishes to remove her name from the mortgage on which he is in arrears by £1,800. Can you give any advice on a) how to get her name off of the mortgage to avoid being black listed with him. b)what is the situation with regards to all the property that was bought whilst married, which he now has sole use of and for which she is still paying for. c)given the above facts is it wise to go to family mediation. She is still very scared of him and could do with some friendly advice, (unfortunately her solicitor is very unhelpful (not returning phone calls, not giving good advice etc) Please Help!!!
A.	Dear Andrew, This is a difficult and traumatic situation and needs careful consideration. Firstly, your friend should make an appointment to see the present mortgage lenders and inform them of the situation as soon as possible. If the present mortgage is in arears then there is always the possibility of repossession proceedings which will then affect credit ratings. They may consider taking her name off the mortgage but willl take into consideration whether the remaining mortgagee has the ability to pay. Broadly speaking, if you are a joint debtor, then you are jointly held responsible for debts. However she may not be held liable for debts uncurred by her ex-partner alone. Your friend should contact all joint debtors and again inform them of the situation, she can have her name removed from any joint credit cards ect and may even have accounts frozen, but she could be held responsible for debts accumilated until this point. Debt advice may be appropriate, your friend can consult her local CAB The National Debtline (tel 0808 808 4000) Thirdly, it may be helpful for your friend to contact the womens aid helpline who may be able to assist in her particular situation (tel 0845 702 3468). Fourthly, The National Family Mediation may also be of some help (tel 020 7383 5993) Please do not hesitate to contact us if we can be of further assistance.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My husband and I split up about 18 months ago after three years of marriage. He moved out, and it was as amicable as these things can be. I'm now 28, he's 30. We've both always worked full time, and have no children. We had a bank account each for our salaries and normal monthly spending, and a joint one to pay bills/mortgage etc. When he moved out, he stopped paying anything into the joint account. I took over payment of all the bills and paid him half of the account balance as at the date he left. We later agreed a value on the house of £67,000 (by taking the average of three estate agents valuations). He didn't want the house, so I bought him out (for £9,000 - half the difference between the mortgage and the value). There was a six month gap between the value being agreed and him getting his money, because it took me a while to get my new mortgage sorted out. I've since moved to London and got a much better paid job, and in July (14 months after split, but only eight months after the house going into my name/me paying his money) sold the house for £77,000. This increase was due to the buoyant property market and not to any original undervalue of the house. We were intending to divorce after two years, on grounds of separation with consent. However, he's now been to see a solicitor and is intending to divorce me on grounds of unreasonable behaviour. (He phoned me up to warn me not to get upset that none of it was true, because he'd just let the solicitor tell him what to say, in order to get it acceptable to the courts!). I'm suspicious! Why wait 18 months, but not two years? During the conversation, he made a few comments about how much I was earning and how much I'd got for the house, hinting that it wasn't fair that I had more than him, and how nice he was being not claiming maintenance! I'm now panicking that he might have some sort of claim planned against me, for either a) £5,000, being half the increase in value of the house between him moving out and me selling it, even though it was in my name, or b) some form of maintenance because I now earn about three times what he does (although this is partly his fault as he's reduced his hours at work to work a four day week). When we were together, we earned more or less the same. Common sense tells me that surely he can't be entitled to anything. But I'm worried that his solicitor may know something I don't, and if I just sign whatever I'm sent I may regret it! Can you give me an idea please of whether he would be able to get maintenance? He used his lump sum to put a deposit down on a flat, and obviously has supported himself adequately on his own salary since we split in the same way that he did before we met - and while we were together, for that matter. My lump sum is in the bank while I decide whether to buy a place down here or not. And might he be entitled to anything from the house sale? I'm sure I wouldn't have been able to claim from him if the opposite had happened and the house had fallen in value! And if I admit "fault" in the divorce, would that make a difference to any of this? I'm tempted to just sign the thing when it turns up, to get it over with and so as not to increase costs or lose the amicability. But if there might be a problem, I'll make him wait the two years. Oh, and incidentally, while reading through the recent questions before composing this, you mentioned that unreasonable behaviour has to be within the last six months? If this is right, does his claim fall through anyway? Thanks a lot for your help.
A.	By admitting fault in the divorce will probably not have any implications provided you protect yourself in respect of costs. Ie, advise him you will only agree to accept the Petition and not defend it if he agrees not to rely on the particulars and not to claim costs against you. He may have some difficulties with the Petition but until you see what it alleges and when it is alleged you cannot tell On the facts of the case I think you are OK in respect of the finances. Maintenance is highly unlikely in view of the fact there are no children he is caring for, you are both young and he is able to support himself. Capital claims are also unlikely but bear in mind that no orders have yet been made, however the Court will take into account that you acted in good faith when paying him off previously. It is probably a good idea for you to have any order drawn up which dismisses all claims against each other for completeness. My advice is to go and see a solicitor once you receive the divorce paperwork and make sure everything is OK with it.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	i,ve been divorced for three years although there is still the matter of the marital home which is in joint names to sort out. my ex wife moved out of the home through choice. i wish to sell the property, could you please advise me on her entitlements.
A.	The Court will start at a 50/50 split of the assets before taking into account any other factors, such as need contibution, resources of each of you now. If you have continued to pay the mortgage since separation solely then the value of the house in equity, between separation and now may well be apportioned to you. You need to see a mediator or a Solicitor if you cannot agree a settlement.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My ex husband and I got divorced about 1 year ago. He bought me out of the house, he had the property valued at £72k we purchased at £60, so I got £6k pay off. He has recently advertised the house for £105,000 so it seems to have risen dramatically in price over the last year. Is there anything I can do legally, as I feel the house may have been incorrectly valued previously.This may seem petty but I was left with a lot of debt from the realtionship asn something deosn't seem right about this. He has done nothing different structurally to the house since I left.
A.	You do not say whether an order was made in matrimonial proceedings or whether this was an informal agreement between the two of you. If solicitors were involved it would have been up to them to make sure valuations in respect of the home were correct. If you and your husband agreed matters between the two of you and you did not chose to have the house valued, ie, you did not think that the value was wrong then you could be in some difficulties. If you believe that he set out to dupe you then you may have a case particularly if no formal Court order was made at the time. Go to see a solicitor locally for initial free advice.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My husband and I were married for 3 years and have been separated for 2 years. While we were married the house was in his name and also his ex girlfriends. I constantly nagged him to remove her name from the property to enable my name to be added but this never happened. When I left the marriage, I had to buy my house and car with my own money. Even though he paid the mortgage and bills I spent considerable amounts updating our home i.e. paying for a new roof, new windows and holidays etc. I also personally and financially "made-over" all the rooms and garden. I am now contemplating divorce. I feel that I have added considerable value to his property but he is refusing to pay me a single penny. I don not wish to ask for a large sum of money from him because I would like us to remain on friendly terms. Do you think I have grounds to ask for a reasonable sum in view of our situation? I just feel that he has benefited from our marriage while I have had to start again from scratch.
A.	Although the house is in his sole name it is a matrimonial asset and you are entitled to make a claim against it. Factors the Court will consider are set out on the web site. Bear in mind that if the house was owned by him for a substantial period of time prior to the marriage then you may not obtain a 50% share. Also this is short marriage but you should not be prejudiced by the fact that your name was not put on the deeds.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife and I have been separated for 2 years, and are currently divorcing amicably. We are handling the divorce ourselves. We have a flat, with a mortgage in joint names, which is now in a negative equity of around £6000. Neither of us now live in the flat, and it is rented out via an agent. My wife has never paid any money toward the mortgage or endowment, but paid utility bills and food bills. We now wish to sell the flat and I would like to know if she is liable for half of the negative equity owing on this property. My wife wishes to use "her half" of the endowment towards the negative equity. I am unsure as to whether asking the court for a property adjustment order would be helpful. Is this likely to delay our divorce, and what does it involve? We are both now living with new partners, will their incomes be taken into account? Finally, my wife has stated that she is entitled to half of my pension, if she wishes. However, she has always worked full time, we have no children,and she contributes to her own pension scheme. I would be very grateful for your help.
A.	On the face of the matter your wife is going to be jointly responsible for the negative equity. You may not be able to sell the property free from encumbrances if you are not able to pay off the debt on completion. It will therefore be necessary for you to meet the balance of the negative equity. If the endowment policy is in joint names then on the face of it once again your wife is probably entitled to one half. Therefore either you buy her out of that share, (ie an assignment of policy) or you cash it in and split the proceeds, she may then wish to use that money to pay her share of the debt. I do not really understand why you raise the issue of a property adjustment order. This relates to a transfer of property and not a sale. If you want the property transferred to your name and your wife will not agree then you will have to make an application to the Court. Sometimes financial matters can hold up a divorce, however if you are the Petitioner it is open to you to apply for decree absolute when you wish. In view of the fact that you have no children and you both have new lives and new partners it would appear on the face of it to be a case for a 50:50 split. If you are both relatively young (ie, under 45) then pensions are unlikely to be an issue. However both will be taken into account if they are.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	I hope you can give me some advice or point me in the right direction. I want to either divorce or separate from my wife. We have 2 children aged 19 and 21. I have also got debts to 4 creditors who have accepted no interest payments to clear the debt of(about 18 months to go at present payment) this means I got no money to start divorce procedures as all the spare money goes toward paying off the debts. The question I will ask is If I decided to find a rented house and move out what would happen to my house because I could not afford to pay the mortgage as well as rental. My son and daughter would also probably come with me. My wife does not work so she has no income at all. I would be willing to give her the house but she could not pay the mortgage, so could she get help finacally or would she lose the house. Sorry if this question sounds a bit muddled but I not really clear about how to go about things or where I can get advice from. Thanks for any advice you can give me.
A.	Firstly, on the issue of your house, as your wife has no income, the mortgage lender would be reluctant to accept her as sole mortgagee unless she could show that she is able to continue the repayments. She may become eligible for welfare benefits such as job seekers allowance or income support but neither of these include mortgage repayments, only 'interest only' payments and not for the first few months. Therefore the mortgage lender would possibly prefer to continue to hold you liable for payments. It may be helpful at this time to consult your mortgage lender as some are more understanding that others, given the circumstances. Secondly, on the issue of divorce in general, if the divorce is to be straight forward you can initiate proceedings yourself and save money in legal fees. Divorce -online can provide you with a self-help pack which explains the procedure clearly. Go to home page for this information. Please do not hesitate to contact us if we can be of further assistance.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My Wife and I are currently going through the initial stages of divorce (seeing our solicitors for the first time). I have heard that, despite our promises to each other of an amicable settlement, she can evict from my home at any time that she chooses. Even though the divorce is on the grounds of 'Unreasonable Behaviour'. There has never been any sign of violence between us, I have never threatened her and even in an arguement we rarely, if ever, even raise our voices to each other. The house is in joint names, despite the fact that the deposit and initial renovation work (approx £50,000) and EVERY payment to date has been made by me. I do not begrudge her a house to live in, but if she evicts me, I will not have enough money to pay for my own accommodation. My main fear is that she is being 'poisoned' by her 2 close friends who have recently gone through messy divorces themselves and that she will be coerced into changing her mind about an amicable divorce. IF I am evicted, does she have to pay her own half of all the household bills and mortgage, or would I still be expected to pay for everything? Even though to do so would leave me virtualy destitute and no where to live! Can I prevent the possibility of being evicted? Surely I MUST have some rights? Our original plan was to remain in our house till after Christmas, then sell up, pay off our debts, split the profits and go our seperate ways. We have 2 children; 19 and 14, and for the sake of them we were going to be 'friendly' about the whole thing. I am really fearful that her strong willed friends will cause it all to change and become messy. I would value any advice you could give me on this matter.
A.	This is not true. To have you removed she would have to apply for an Occupation Order under the Family Law Act 1996 on the ground that for you to remain in the house would mean there was a significant risk of harm to her or any children. This usually means from violent behaviour or undue mental abuse. Therefore there is little chance of you being ordered from the house on the facts you have given, and your financial matters should proceed to an orderly conclusion through negotiation.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	The mortgage and deeds for our matrimonial home are all in my husband's name. Can you please tell me whether I will be entitled to part of that home and am I entitled to stay in it - I have two children one is 5 years old and the other is 1 and half.
A.	You need to see a Solicitor to have a Matrimonial home rights caution added to the Charge Certificate at the Land Registry, so he cannot sell or charge the property until an order is made. You will be entitled to a share of any equity and as you have children, you will probably be allowed to remain in the home until the children have left school or you re-marry or cohabit with someone else. You will also most likely be able to get Legal Aid.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I have been divorced for 4 months, my children are 12 & 15 living with their mother. The house is currently worth approx £105000 with mortgage of £72000 with 13 years remaining repayable by endowment. At point of divorce I had earned 14 years pension. My daughter plans to leave home at 16. My ex went to college 2 years ago after I first left, and plans to be there for at least another 2 years and has no plans to assist with any of the finances refusing to get any job, she has not worked for 13 years. We cannot agree a settlement, can I force the sale of house(joint names) as I need to stop paying high rents and move on and purchase my own house.What do you anticipate my final settlement would be realistically.
A.	In the absence of your wife's agreement to a sale of the home, the only way you could force it would be to apply to file an application for ancillary relief within the divorce proceedings that already exist and as part of the settlement, seek an order for sale. On the face of it, as your wife lives in the property and so do your two children, it would seem unlikely that the Court would order a sale. You need to seek detailed legal advice and there will have to be full disclosure of the financial circumstances of both you and your wife. In particular, it will be necessary to ascertain (1) the value of the endowment policy, (2) the transfer value of your pension, (3) your income. Further, it will be necessary to explore your wife's earning capacity and in particular her prospects of employment when she has finished the college course she is currently undergoing. Based on the information available, it is not possible to predict your final settlement at this stage.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	We were married for 3 years before my husband left. He is now living with another woman. We bought a house which is in my name. The house is worth about £40k with about £30 owed on it. I have continued with the mortgage payments. When he left he went to a solicitor and registered his interest in "marital home rights". Please can you explain what this means. I want to pay him a lump sum of a few thousand pounds before we divorce and make a clean break, but he won't discuss this at the moment.
A.	He is protecting his rights so you do not mortgagage or sell the property in the meantime. The Matrimonial Home Rights caution will be lifted when you obtain an order for the proposed lump sum. I suggest you see a Family Law specialist Solicitor asap to get the negotations under way.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am writing regarding my present situation. my husband is purchasing a house, he wants to get a joint mortgage with myself but the house is to be conveyed in his and his mothers name. How does this work? and what happens if the mortgage and house is under both of our names (husband and wife) We have been married a year, in which time he has given no maintenance or showed any concern and we have had many ups and downs, even to a point we seperated for three months and are now sorting things out but severley worried about buying a house. The issue being that i am worried if the mortgage is in joint names, i understand that i will be liable to pay, if he does not pay his share i cannot afford to pay the mortgage on my salary alone. I am worried what would the situation would be with regards to the property if our marriage broke down. I would like to know what i would be entitled to in terms of matrimonial rights and settlements. Also what would my situation be if he took out a single mortgage under his sole name, what would be my rights in that particular situation. I would appreciate if you would advise what would be in my best interest regarding the above thank you
A.	You are correct in your assumption that if the mortgage was in your name you would be jointly liable and if he could not pay, they would look to you for repayment. If the property is purchased in joint names the Court would assume a 50/50 equity share unless otherwise stated and start from that basis when looking at any finances on breakdown. If the property is purchased in his sole name it would depend on your level of contribution to the property and need at the time. IF the marriage is short then you would probably receive less. I suggest you make an appointment with a Solicitor to get more detailed advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am not in the process of divorce but my marriage is effectively over. I want to know how to start the process. My wife and I live under he same roof and I want to know if there is any way I can get her out of the property. It is in my name, and I have always met the payments. I want her to go because there is huge tension, and this is damaging our children. She is violent towards me physically and emotionally - even a wrong number will cause her to explode. I have no-where else to go, I cannot afford to go elsewhere and my credit is bad so I cannot rent. I am totally trapped and need to know if I can get her out.
A.	If your wife is causing you significant harm through her behaviour or to your children, you will have to obtain a non molestation order and an occupation order to have her removed. This involves making an application to the Court with a sworn statement setting out the incidents of violence and the harm it is causing the children. The Courts will only make an occupation order to remove her if there is a likely hood of significant harm. They will also need to know she has somewhere else to go, such as a relative or friend. An application of this sort will be expensive if done privately but you may be able to get Legal Funding (legal Aid) if you have a low disposable income. I suggest you make an appointment with a Community Legal Service Solicitor to discuss your case. They can grant Emergency funding straight away if necessary. Do not delay in this and keep a diary note of all incidents as they occur. Please feel free to use the Divorce-online diary service which you can keep private and print later for evidence.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been married 3 years. My husband moved into my house, now worth about 200K with a 57k mortgage. I have always paid the mortgage, and I have always earned more than him. He has comitted adultery and left me. Is he likely to be able to claim anything from the house (all other assets are negligible)
A.	You have a short marriage, the house was yours and remained in your sole name and you always paid the mortgage. He is unlikely to be able to claim very much as he has made no contribution to the asset on purchase and has not contributed to any equity during the marriage. The fact of his adultery is not really relevant, except for the fact you can divorce him. On a practical note, if he decides he wants to fight, the CLS (legal aid) will let him keep £2,500 before he has to pay any costs back to them. A small lump sum may save considerable costs of litigation if he decides to claim. I would instruct a Solicitor asap to write to him indicating your position and to get the divorce underway, so you can get this sorted out quickly to allow you to move on with your life.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	As part of the ancillary relief settlement my ex wife ended up with 90% of the marital assets some £53,000, on the basis that she needed a to provide a home for our 5yr old daughter, clean break etc. In her new home just purchased she is now co-habitating with her boyfriend. Thus effectively invalidating the Divorce settlement, presumably he's helping support her financially. How though can I prove this ?, bearing in mind her boyfriend owns his own home a mile away, still furnished, not let out or anything like that. I have checked via the land registry that the home is registered in her sole name. I was informed by my solicitor that I'd need to employ an equiry agent, also he says after a year or so of the divorce settlement she can do what she wants and I'd have difficulty in suceeding to get the consent order we agreed to set aside (no mention of co-habitation) Any comments appreciated
A.	Dear Mark, I am afraid I would have to agree with your solicitor in this matter and further point out that if the suspected cohabitee has his own home it would be even more difficult for you to prove cohabitation. For your reference cohabitation in law is defined as persons living together as their sole or main residence. Divorce-on-line could help you with recommending an enquiry agent in your area if you wish.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I moved in with my fiance in June 1998 the house was owned outright by my wife and there is no mortgage. We married in May 1999.On Dec 31 she cancelled our New Year arrangements and she went to a party all night with another man then spent the next day with him alone in his flat.When i found out my solicitor wrote requesting a divorce on the grounds of Unreasonable behaviour. shortly afterwards she was diagnosed diabetic and asked me to move back. I agreed and moved back until april 2000. In june 2000 I again moved back and we were making things work. I came home one night unexpected to find her in the bedroom with another man who she denied any wrong doing but has subsequently become common knowledge as her partner. What are my rights concerning the house or any value or value increases in the time I was there.
A.	You have been married a little over a year and therefore your financial rights will be limited as short marriage cases tend to be based on contribution rather than need. You may be entitled to a lump sum to enable you to re-house yourself and her Solicitor will probably advise her to pay you off with the equivalent of a 5% deposit on a flat or small house. That is the easiest way to deal with it in my view. However you should seek independent advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband and I are in the process of separating. We've just sold our house and have made a profit of £40,000 in the 2 years we've owned it. We have an 8 year old child and I'd like an idea of how we should split the proceeds after we've repaid the mortgage and estate agents fees etc. I've suggested a split of £25k to me and £16k to my husband. We've always split all the bills 50/50 including the mortgage and I think that as its me providing a new home for myself and my son its only fair I should get more of the money. Any help would be appreciated. Thanks.
A.	You are quite right to ask for a higher figure if you will be providing a home for your son from that money. There is no hard and fast rule, you need to work out what you can raise in mortgage and what deposit you will need for the house price/range you want to live in. That will give you an idea of your needs.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	MY HUSBAND IS IN JAIL FOR ASSAULTING ME TWICE,ATTEMPTING TO STEAL A CAR,AND IN ANOTHER CITY IS AWAITING TRIAL FOR DRUG POSSESION. (I HAVE A PROT. ORDER)HE WROTE TO ME FROM JAIL,WANTS ME TO MEET WITH HIM TO DISCUSS DIVIDING ASSETS AND SELLING OUR HOME.I AM SOLE PROVIDER FOR TWO BOYS AGES 7 AND9.THEY R ALSO UNDERGOING COUNSELING FOR HIS DRUG ABUSE.(HE WOULD LEAVE PARAPHANELIA AROUND HOUSE).CAN HE LEGALLY TAKE THE HOUSE AWAY FROM US?IS HE ENTITLED TO HALF?HE HAS NOT WORKED IN A WHILE,HAS PAWNED ALOT OF STUFF,MY JEWLERY ETC.PLEASE HELP! AM HEARTSICK OF THINKING WE MIGHT BE HOMLESS, WHILE HE IS GETTING FREE MEALS AND A BED.I AM STRUGGLING TO PUT FOOD ON TABLE,AND AM BEHIND MORTGAGE 2 MONTHS.WE ONLY HAD THE HOUSE SINCE 96.BOYS DON'T WANT TO SEE THIER FATHER EITHER.I OFFERED TO TAKE THEM TO SEE THIER DAD,BUT THEY SAY "NO".AND IT IS NOT AT MY URGING.ANY ADVICE WOULD BE GREATLY APPRECIATED.
A.	From your question it would appear you are in the USA. You need to look at a US specific site. We suggest: www.divorcemag.com www.splitup.com www.divorcesource.com
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife has indicated via her solicitor that she may be prepared to refrain from commencing divorce proceedings until we have both been separated for a period of two years. (We have now lived apart for 12 months, she insisted I moved out on my return from a four month period working abroad). However, this is subject to me transferring the former matrimonial home, from joint names into her name only. She is also seeking assignment of the endowment policy from joint names into her sole name. It is unlikely that she would be able to obtain my release from the mortgage. She states that unless I agree she will commence immediate proceedings on the grounds of unreasonable behaviour. Where do I stand in this matter and what are the financial implications to me if I go ahead and agree to her terms?
A.	If she divorces you it will not have any financial effect on you whatsoever. The threat is an empty one as far as that is concerned. If you are not removed from the mortgage you will have trouble getting another one. I believe your best option would be to sell and if you have no children the court would no doubt agree.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have recently parted from my girlfriend after a 14 year realtionship, during which we were living together for 12 years.We were not married. We jointly owned the house and contributed equally to the mortgage and purchasing of items for the house. Four months ago I left the country to work abroad, and agreed with her that for the present time she could stay in the house and I would contribute my half towards the mortgage, which I have been doing. However I have since met someone else and continuing to pay my old mortgage is becoming a burden and I would like to sell the house, which has a reasonable equity and an endowment policy, but my ex partner is not so willing to sell at present but may be prepared to sell next year. If I insist on selling now and she refuses what rights do I have and what action do I need to take ?
A.	If you do not have children she cannot stop you selling the house at any time. You would have to apply for an Order for Sale under the Trusts of land and Appointment of Trustees Act 1997 ( I think that is the title). When you buy a property you do so on trust for sale, so she cannot stop the sale only argue the amount she should receive. You will need to obtain a Solicitor to do this.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife has been having an affair for 8 months. She has left and come back 5 times during the past year. Stupidly, I thought she was living at her mother's, until my 3 year old son stated that he slept in a bed with "mummy and chris". I have read your question and answer pages on Adultery and you state that a child's story would not be accepted in court. My wife has already stated that she will not admit adultery and that she and Chris are "just good friends". Also, she left our family home and took my son with her to live with Chris. I see my son only one day per week at her or my mother-in-law's say so. If I do not agree to her demands, she says I will not see my son at all. When I am at work, she ransacks the house and has taken some furniture and joint belongings. She has awakened me at 5.30am one morning with a knife, threatening me, so I put a chain on the door to protect myself whilst I am asleep, as I know I am unable to change the locks. She came back to the house during the day and ripped the chain off the door, causing significant damage and took more joint belongings. She now advises me that she has been to a solicitor who informed her that she is entitled to 75% of the house and 25% of my earnings. With me being the higher paid of the 2, I have been paying the mortgage, gas, water, electric and pole tax. She paid the phone bill. She makes threatening and obscene phone calls to me during the night but I have been advised that I am unable to change the phone number as it is in her name. She took the family car, so I now have to travel to work on a pushbike. I realise this is a lengthy statement, but I would really appreciate your help, as I am on anti-depressants and don't know which way to turn. Kind regards.
A.	You need to get a solicitor. There are many aspects to this case which are important, the most being how regularly you see your son. I cannot give you exact advice on finances as I need to have all the evidence before being able to do so but I would draw your attention to the site's FAQ's on ancillary relief in this regard. In relation to the divorce in my experience people rarely defend petition's once they are issued unless they do not want to be divorced. If you consider that the marriage has irretrievably broken down and that this is as a result of your wife's adultery then you should petition on this basis. If she is having a relationship with this man then it is unlikely that she will be prepared to hide it forever. Bear in mind whether it would be wise to name him as the co-respondent, this can cause more problems than it solves. In relation to contact with your son, you have not stated any reason why this should be supervised and therefore you need to press to see him, perhaps at the former matrimonial home and also with a view to him staying overnight. Your rights in this regard at quite strong and you need to make sure you maintain a relationship with your son for his sake. Two other points to note. As regards the telephone, if your wife is no longer living at the property you have to advise the operator of this. Once that is done you should be able to have your own phone number. Sofaras her behaviour is concerned this is not acceptable, you may have grounds to prevent her coming back to the house. A non-molestation order against her will prevent her threatening you in the future and will also preclude her from being at the house when you are there. An occupation order, (which is quite difficult to obtain) will prevent her coming back to the house at all for the duration of the order. It might also be worth talking to your local police officer about her behaviour to see if they are prepared to have a word with her. As I said you ought to get a solicitor, it looks like there might be difficulties in the future and although you may not be able to afford it you ought to seek initial advice at this stage.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I married "in December 1991 and the marriage ended within two years. My wife moved out of the matrimonial home which I alone own since May 1991 and is subject to a mortgage which I pay. In February 2000 I put the property on the market and soon after she placed a notice which resulted in the loss of sale because she demanded 50% of the sale proceeds. She did not contribute anything nor did she have an income during our marriage. There are no children involved and no divorce proceeding started.Can you please give me an indication as to how much she would be entitled to from a court and how I can have the notice removed.
A.	In the case of short marriages, the parties will usually leave with what they put in, or paid for. In the case of your property, if I were acting for you, i would take the postition that the equity in the property has been gained through your efforts and not hers and if she has not contributed to the purchase or mortgage payments then she is not entitled to any equity. You cannot have the notice removed without a court order, so I am afraid you are going to have to issue divorce proceedings and apply for financial relief. If you do not want to go to the expense of applying for financial orders you could make her an offer of a small lump sum to make her settle. If she were to get legal aid, she would be able to retain £2,500 of any monies received before having to pay back her costs. An offer in this sum would in my view be sensible if you do not want to go to court. If in any doubt you should seek legal advice.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	We have been seperated for 8yrs+ and I have an old joint mortgage with my ex who still lives there, although lodgers pay the mortgage and he has been living elsewhere for the last three years. We are finally getting divorced and I am worried that he might have some rights to the home and monies I have built up since we split, and also that I might lose out on the monies I put into the jointly house when we bought it, when it is put up for sale. Does he have any rights to my possesions gained since the split and do I have a right to receive some of the money I put into the marital home orignally?
A.	Firstly, individual postions would dictate whether your ex would have any claim over assets accumilated since the separation, if you have been living totally separately and have not been dependant on each other in any way and there have been no accumilation of any previously joint assets. then it is unlikely that there would be a claim. However it must be noted that situations such as yours are often not as cut and dried as this. Secondly, Monies that you originally contributed towards the cost of the property in question should be claimable. Thirdly, as there is a joint mortgage on the property in question, you may be entitled to some of the proceeds. the amount would depend upon how much you contributed by way of mortgage repayments and any contributions to alterations and improvements ect. Finally, it would be advisable in your situation to seek specialist legal advice. Alternatively it may be to your advantage to negotiate with your ex, this will save on legal costs for both parties. Please do not hesitate to contact divorce-online if we can be of further assistance.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am currently in dispute with my wife over finance, namely the disbursement of monies being held that are proceeds from the sale of the matrimonial home. I am having to represent myself in these matters as I cannot afford to pay even the half fees charged whilst being in reciept of legal aid. I am on incredibly limited means. Despite writing to my wifes solicitor several times they refuse to answer my questions. I have voluntarily disclosed details regarding my income and assets yet my wife has so far refused to fully disclose similar details herself. She maintains that she has no savings yet I know that she has somewhere in the region of £30,000. She has provided no documentary proof of income or bank/building society accounts eg statements etc. How do I force this issue in order that she has to provide me with such evidence? I have written to the court to say that I feel full disclosure is not taking place though have not heard anything from them. A preliminary hearing date has been set for 3.10.00 and decree nisi was issued last week. What should I be doing to make her or her solicitor respond to my requests?
A.	You need to send them what is known as an FPR rule 2.63 questionnaire. In this you need to write a list of numbered requests for disclosure you feel has not been received. However if you are proceeding under the NEW rules you should have received Form E from your wife with full disclosure and exchanged yours at the same time. If you believe form E is incomplete you have to file and serve the questionnaire together with statement of issues at least 7 days prior to the first hearing. In The Legal Process-Types-Finances applying you will see the pre-action protocol and timetable for the new rules. I suggest you print this off for reference.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My girlfriend is in the initial stages of getting a divorce. The husband is making things very difficult for her. 2 children aged 10 and 7 are involved. What happens with regards to who keeps the house. he wants to buy her out and she wants to buy him out etc. etc.they have been married 17 years and the mortgage has only 5 years to go. She is worried about who will have the kids as he has threatened to "Take her to the cleaners" I am supporting her as much as possible but it is inevitable that she will break under pressure as i cannot be there for her all of the time. She is finding it unbearable to continue living with him and he continues to argue in front of the children even though she asks him to discuss the marriage away from them. He is using the fact that it hurts her due to the children being present in the arguements. Can you answer the questions regarding the above and offer some solutions to them? thank you for your time in reading this. John D
A.	I can only advise you as what the Court take into account when considering finances. These are the section 25 factors and include; length of marriage, age of parties, children of the family, earning capacity of the parties, standard of living throughout the marriage, and in certain cases conduct of the parties, etc. Clearly this has been a long marriage. However it will be important who the children intend to live with as it is likely that this person will have more of the capital to the marriage at this stage. If your girlfriend is to keep the children then she may be able to stay in the house, paying over a capital sum to her husband. However if the parties are unable to agree only the Court can adjudicate. Bear in mind that intention to co-habit with another is a factor the Court must consider when dealing with finances so this could be pertinent in your situation. Court applications obviously take time. If the situation in the house is having a detrimental affect on your girlfriend and her children then she could perhaps apply for a non-molestation order or occupation order against her husband. However she would have to show that she or the children were at risk from significant harm from his behaviour. Emotional abuse can be considered significant harm. Advise her to discuss the same with her solicitor and if she is yet to instruct one then I would advise her to do so immediately.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have just started divorce proceedings on the grounds of my husbands adultery. We do have two children aged 14 and 17 and the house is in joint names. If the divorce runs smoothly, how quickly could it come through?
A.	The divorce itself should take no more than four months. However if you have a dispute over finances or children you may be advised to hold off applying for decree absolute until they are settled or they go to court
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I are attempting to carry out the divorce ourselves(Using the divorce pac). We have agreed on the financial terms but we have hit a bit of a problem with regards to the house. I own 2 houses, I would like to sign one of them over to my ex wife but she has a bad credit rating. How can I relinquish control of the house?
A.	This will be difficult if she has trouble getting a mortgage. However some lenders are more flexible than others and you therefore need to find a broker who will be able to guide you as to who are the best to approach. You could try www.moneysupermarket.com who can find you a provider even with bad credit rating and compare rates etc.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Prior to my divorce ten years ago, my ex-husband and I purchased a time share. However, the day before we were due to use it for the first time, he told me he was leaving me. I had already paid two years maintenance charges on it. During the divorce proceedings, I found a company that would try and sell it for us. This would cost £150 and I asked him to subsidise this amount which he refused to do. My solicitor (?) wrote into my divorce agreement that when I sold the house (which I got from the divorce plus mortgage) that I would repay half the cost of the loan to purchase this timeshare. My question is does this still stand. We were divorced in May, 1990, also should I stay in the house until I die what happens to this (assuming he hasn't died before me). I have three daughters who will inherit the house.
A.	If there was a court order that you should repay half the loan for the purchase of the timeshare, then this still stands unless you agree something else between you now. You ask what will happen if you stay in the house until you die. If you are allowed to stay in the house without conditions then any share due to your husband will be payable to him then. If he dies before you then that debt will pass to his estate and as you say to your daughters who would get the cash value upon your death.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My marriage has broken down after 14 months,I owned our house for 3 years before getting married,do I have any rights to keep it.My wife has 3 children from previous relationships.
A.	This depends on whether your wife can secure alternative accomodation for her and the children.As your marriage is so short the court may not see the children as children of the family especially if their fathers have been paying maintenance for them. It may be that your wife would be able to secure council housing if an order is made that she has no entitlement to the property. A Solicitor will be able to explain how this can be achieved between you but without formal consent which would make her intentionally homeless. I suggest you seek legal advice immediately to clarify your position.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	my husband has just told me that he is having an affair and no longer wants to be married however he has informed me that he will not move out of the house is there anyway I can get him out. We have been married for 34 years and the children are grown up and have left home. I would appreciate a answer to this question as soon as possible.
A.	If the house is in joint names then your Husband has a right to occupy the property. However, even if the house is not in joint names he has a right to occupy until the divorce is final. Under the Family Law Act you may be able to obtain what is known as an 'occupation order'. This is an order enabling you to occupy the property free from your Husband. However it is not easy to satisfy the criteria for obtaining these as they are quite draconian orders, particularly if your Husband has no where else to live. You have to establish that you are at risk from significant harm as a result of your husband living in the property. Note, that significant harm need not be of a physical nature, it can be emotional. If you are not able to get him out then consider whether it would be best to start divorce proceedings in order to have financial matters dealt with under this legislation. I would advise you to seek independent advice as soon as possible.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	my husband has just told me that he is having an affair and no longer wants to be married however he has informed me that he will not move out of the house is there anyway I can get him out. We have been married for 34 years and the children are grown up and have left home.
A.	If the house is in joint names then your Husband has a right to occupy the property. However, even if the house is not in joint names he has a right to occupy until the divorce is final. Under the Family Law Act you may be able to obtain what is known as an 'occupation order'. This is an order enabling you to occupy the property free from your Husband. However it is not easy to satisfy the criteria for obtaining these as they are quite draconian orders, particularly if your Husband has no where else to live. You have to establish that you are at risk from significant harm as a result of your husband living in the property. Note, that significant harm need not be of a physical nature, it can be emotional. If you are not able to get him out then consider whether it would be best to start divorce proceedings in order to have financial matters dealt with under this legislation. I would advise you to seek independent advice as soon as possible.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	My question is about our current mortgage - this is an endowment mortgage taken out 10 years ago with 15 years to run - £72,000 is the balance. The endowment company refused to reinstate our payments when we had a break of 6 months for maternity leave, 5 years ago, so we have continued to pay the Abbey National but have left the endowment untouched with a current surrender value of approx. £4000. The reason they refused to reinstate us after the break was because they got a medical report on my husband who is an alcoholic. At least the abandoned endowment is giving him some sort of life insurance cover and is not diminishing despite monthly admin charges (it's with Merchant Investors). I had thought it would be best to transfer the mortgage (within Abbey National) to a straight repayment but this will involve an increase of £50-£80 per month on the payments. With divorce proceedings imminent (at my instigation) I don't want to land myself right in it as far as monthly expenses go. Working on the CSA calculation he will have to give me £75-£90 per week child maintenance. I currently earn £650 net per month and would fight tooth and nail to keep our house and continue with the mortgage. Surely a court would not give custody to an alcoholic or make me move out of the house and sell it ? Would they ? The children are 8, 5 and 5. I think they would leave me there and say to sell it when the youngest child is 18 - then give himk a cut of the profit. Yes ? Would he still be entitled to a cut if I'd managed the mortgage on my own for the interim years ? I'd take in a lodger if necessary, anything to give the children the stability of staying in the same house and at the same schools. Would I be entitled to any sort of family tax credit or get any help with the mortgage ? I currently work 25 hours per week to earn the £650 net per month. I really don't want to sell the house and end up in smaller or council accommodation. Do you think I should go ahead and get him to sign the mortgage transfer papers while we're still on speaking terms. Will I be better paying the repayment mortgage (even if it's dearer) ? I can't see any benefits of keeping on with the endowment mortgage, there's definitely not going to be enough in the endowment in 15 years time to pay the mortgage off is there ??!! Please let me have your advice and thoughts, sorry to have been so long winded but it's all very complicated to explain.
A.	Firstly, you're right to say that in certain circumstance the courts will make an order to the effect that the property may not be sold until the youngest child reaches adulthood, with the proceeds portioned out (generally) according to the contributions made by the respective parties. You are also right to say that a court would be reluctant to give custody of small children to an alcoholic, in family proceedings it is the welfare of the child{ren} which is of paramount consideration. Secondly, you may indeed be entitled to family tax credit as you are working part-time and your are (or will be) bringing up a family alone. Contact your local social security or tax office for an application form. However unless you are claiming income support, it is unlikely that you will recieve help specifically with the mortgage, if you are considering claiming income support in the future, it is worth bearing in mind that only the interest payments will be paid. Thirdly, as you are considering the possibility of requesting that your spouse signs over the mortgage to you, it would be wise to make an appointment with your mortgage lender to discuss the situation, they may be able to assist with a number of options such as increasing the number of years of your mortgage so that payments are easier to manage, You could also address the endowment issue at the same time as if you were to be the sole mortgagee the the circumstances will have changed and the grounds for not reinstating the endowment would no longer apply.However on that point, specialist financial advice is necessary, your lender should be able to help. or you could consult an independant advisor. If you have a solicitor dealing with your divorce, then he/she should be in the position to advise. Finally, it would be advisable in the circumstances to seek legal assistance (if you haven't already done so)as there are several issues with regard to your divorce. ie property, children, which appear to be pressing. Please do not heitate to contact divorce-online if we can be of further assistance.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife and I have been separated for 8 months and my wife has commenced divorce proceedings on the grounds of my adultery. I ma living with my partner and we are considering purchasing a new home together. My wife is still residing in the former matrimonial home and negotiations over ancillary relief are advanced but not completed. Would jointly purchasing another property with my partner prejudice my position in anyway? Would my wife have any claim over the new property? Note, I have not received any capital from my wife to finance the new purchase.
A.	It is difficult to answer without knowing the full facts of the case. You will see from 'frequently answered questions' that the Court consider the Section 25 factors when considering ancillary settlements. I am sure that one of your arguments for proceeds from the matrimonial home is for you to be re housed. Clearly if you purchase another property with your partner, your argument will be weakened. Depending on other assets and arguments involved it may be better to wait. Obviously if there is any equity in the property you are going to buy then your share can be taken into account.If your new partner is putting down a greater deposit than you, then it is important for this to be reflected in an appropriate agreement to avoid your wife claiming a share.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	Question re: property rights to marital home. I am writing on behalf of a friend who had to flee the family home with her 8 year old daughter last year in April. She petitioned for divorce at this time. The property and mortgage are in the husbands name. She has just informed the local land registry of her matrimonial interests in the property. Because she has not lived in the family home for 15 months, can the husband discharge any of her rights over the home particularly with regards to 1) the home being sold by the husband without her consent 2) her occupancy of the home 3) the home not being included in the final financial settlement of the divorce. Regards, Alex Springham
A.	If as you say she has registered her matrimonial rights against the property then if her husband tries to do anything with it an intended purchaser or mortgagee will be alerted to this interest. However between leaving and registering her interest he may have been able to borrow against it already. However the property will be taken into account in the matrimonial settlement and this is something, which her solicitor can deal with. If further monies have been borrowed then the Court can take this into account. If he has had the benefit of these monies then he must account for them. Just because she has not occupied the property for 15 months does not mean that it will not be taken into account in the matrimonial settlement. Be aware that the Court considers all assets. However there are other factors taken into account, such as children involved and length of marriage. Might be a good idea to look at frequently asked questions to get an idea of what the Court considers in financial matters
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband moved out two weeks ago. On Monday he said he wants a divorce. He is giving me no reasons excpet he no longer loves me. I believe he is seeing a work colleague but he denies it. I am worried he will come to our house and take lots of joint items. If I change the locks am I acting illegally / unfairly ? We pay the mortgage jointly. We also pay jointly for his car & insurance which is in his name and he has taken with him. Should I have access to this ? If I refuse to divorce him can I also refuse to sell the house and make him wait two years ? It would be / is our 2nd wedding anniversary next week and until now we have never separated or had problems.
A.	If your husband wants a divorce and has no reasons other than he has stopped loving you, then he will have to wait for 5 years if you do not consent to it. He would have to petition for unreasonable behaviour if he wanted a divorce now which is a subjective matter and difficult to defend. If you believe he will come to the house and take items of value you can obtain an injunction to prevent removal of property or disposal of assets but this would be expensive if you cannot get legal aid. If you change the locks he would be able to break back in as long as he repaired the damage. However I would advise you get a solicitor to write to him expressing your concerns and that he must only come back to the house by appointment. If there is going to be a permanent split, I would not advise stretching it out as it will only stop you getting on with your life, and you have to look after number one from now on. If he is seeing someone at work he should stop being a coward and admit it as in the long run it will only make you more angry towards him and you will find out eventually. I would front him with it and ask him to come clean so you can deal with it now rather than later. As far as the house and car are concerned, if you have been paying equal amounts towards them then the equity in the assets should be split equally (if you have no children) it will also depend on your abilities to rehouse yourselves with your incomes. However as you have only been married a short time a straight split is more likely. Please see a solicitor straight away and ask for a first interview for free.
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	Hi, I'm posting this on behalf of a friend. (with permission!) She was in a short marriage of about 18 months. They have now been seperated for two years. No children are involved. She left the house they had purchased together. The house cost 80K. 50K was aquired by a mortgage, the remainder wasa deposit from a cash gift which came from his mother. The house has now appreciated to about 120K. But we can estimate that it was probably worth 90K when she left. At the time of split, he was earning about 30Kpa, and she about 10Kpa. He paid the mortgage, she paid all the other bills. At the time she left she had no savings. So far he has made an offer of 7.5K. Obviously a solicitor is involved, but she is reluctant to advise actual figures, or precise actions. Should she take this to court ? What kind of costs are involved ? And who pays ? We understand that if the court decided that the settlement should be less than the highest offer so far the party that didn't make the offer pays costs ? Is this true ? How would a court split the equity on the house ? Would the court try a 50-50 split, or try to restore the finances back to the same levels as when they got married ? (We have been told this depends on the 'length of marriage' - which seems very ambiguious!) Sorry there are so many questions, but any advice would be appreciated. Thanks.
A.	Dear Chris At this point it is extremely difficult to estimate figures, as I understand your friends' solicitor is reluctant to do. However I can offer some advice which may help; 1 - If your friend is dissatisfied with the offer then it is advisable to try to negotiate further before going to court. Although court action should be viewed as a last resort it is never out of the question and it may be strategically worthwhile to point out that one is prepared to do so if a satisfactory offer is not made. 2 - Court costs can escalate in these cases particularly if the matter is strongly disputed, therefore, again, negotiation should be explored. The solicitor involved should be able to provide an estimate of likely costs,(However you do not say if your friend qualifies for legal aid, it would be wise to enquire on eligibility, but note that if a pecuniary gain is made then legal aid requires reimbursement.) 3 - It usual in divorce cases for parties to pay their own costs unless the court deems that one party has behaved unfairly in raising the costs for example where an offer has been made and the settlement is less. 4 - It is correct that the length of marriage is important, and unfortunately eighteen months is not a particularly long marriage, this coupled with the fact that the deposit came from his mother and not from the couple jointly. This will effect the ratio of the split. Also the fact that your friend did not actually pay the mortgage itself will effect the ratio, although her contribution to the household by paying bills ect will be taken into account. Therefore it is unlikely that there would be a 50/50 split in this case. Nevertheless, the offer you friend has received seems quite low and it would be worthwhile (sorry to labour this point) entering into further negotiation, particularly if this is a first offer in order to raise this figure to a more acceptable level. I hope this has been of some help, please do not hesitate to contact divorce-online in the future.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My home is in the sole name of my Husband who has run off with a neighbour. She has her own home. The house is owned by the Council, what do I have to do to get it transferred into my sole name?
A.	You can apply for a property adjustment order. Bear in mind that there must be proceedings ongoing in respect of the divorce before any application can be made. You do have grounds for divorce as your husband has committed adultery. The Court will take into account all financial matters when considering whether to make an order in your favour. One of these will be the fact that your husband appears to have accommodation elsewhere. Important to note that the Local Council in who granted the tenancy must be served notice of the application and they are entitled to object to the transfer. Until the final decree of divorce you have rights to continuing occupying the property under the Matrimonial Homes Act.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I would like to know what percenatge of my earnings, pension, and House Iwould have to pass onto my wife and 2 children ( Age 3 and 5 ).I would like the proceedings to be amicable, and in fact for the sake of thechildren agree to the best Financial terms my wife could expect.What would happen if my wife re married with respect to my pension, salary and mortgage? My wife does not work.I look forward to your response.
A.	It is difficult to advise in a situation like this without full disclosure of all the assets involved. Namely, value of house, existing mortgage balance; transfer value of your pension, current salary any information on any other assets you and your wife may have. This information is essential when considering what sort of order could be agreed or made in the circumstances, as is the length of your marriage and the age of you and your wife.Of particular importance to the Court will be protecting the housing situation for your children. In addition the Court will not want to make any orders in respect of your pension if your wife can be compensated from other assets of the marriage.Usual orders, which can be made, allow for your wife to remain in the house with the children until determining events, such as remarriage, cohabitation or the youngest child finishing full time education.In respect of your children it is difficult to advise on what you will have to pay them without information on your earnings. If this aspect of maintenance cannot be agreed then your only avenue for resolution is the Child Support Agency.
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