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What is the legal take on property finances during divorce

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  • What is the legal take on property finances during divorce

    What is the legal position taken regarding the finances associated with the jointly owned family home during separation to divorce.
    I have been separated for 2 years and since my ex walked out has not made any contribution to the family home, not in terms of the mortgage, council tax, water rates nor utilities, indeed after leaving I found I had a utility arrears bill left for me to clear in excess of £700.
    As I have had to clear this arrears, keep up the mortgage, family debts and bill payments also not forgetting the maintenance costs of the property since the split, when it comes to looking at the equity in the property will the courts take account of this when making the judgement or despite all this will my ex still be able to claim a full 50% of the equity based on the value as it stands at the time of settlement?
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  • #2
    Peridot

    Comment


    • #3
      Hi Photega,
      Apologies for the delay. We all went down with the lurgy and only just surfacing!
      All the finances will be considered when reaching an agreement on the financial settlement. As you are no doubt aware with the mortgage you are jointly and severally liable for the payments. If you can demonstrate (with bank statements usually) that you have been paying the mortgage, council tax etc solely for the last 2 years then this would be considered.
      Consideration is also given to earning capacity of each party, arrangements for children of the family, length of marriage etc.
      There are many factors to take into account. Yes the starting point is a 50/50 split, however the Court then looks at what are known as the s25 factors which are found in the Matrimonial Causes Act 1973.
      The s25 factors can be found here:-
      http://www.legislation.gov.uk/ukpga/1973/18/section/25
      Both parties are expected to complete Form E's which is a full and frank disclosure of each of their finances. If the matter came to be decided by the Court then an opportunity for statements to be made would also occur. The Form E is pretty comprehensive and covers most aspects. Each party would also have to disclose their bank statements and/or accounts for a period to evidence their answers to the Form E questions.
      It is also encouraged that couples should try and negotiate a settlement between them so the fact that you have paid for the mortgage and property over the last couple of years could be a negotiating factor that could off set something else your ex is seeking.
      It is all about trying to negotiate a fair settlement which can be difficult when relationships have gone sour but is the aim.
      It is also recommended that mediation be attempted between the parties to reach an agreed settlement between them. Unless there is allegations of domestic violence the Courts would expect the parties to attempt mediation rather than go to the expense of having the Court decide the financial settlement which reduces the 'pot' considerably as well as being stressful for all concerned.

      I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

      Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

      If in doubt you should always seek professional face to face legal advice.

      Comment


      • #4
        Originally posted by Peridot View Post
        Hi Photega,
        Apologies for the delay. We all went down with the lurgy and only just surfacing!
        All the finances will be considered when reaching an agreement on the financial settlement. As you are no doubt aware with the mortgage you are jointly and severally liable for the payments. If you can demonstrate (with bank statements usually) that you have been paying the mortgage, council tax etc solely for the last 2 years then this would be considered.
        Consideration is also given to earning capacity of each party, arrangements for children of the family, length of marriage etc.
        There are many factors to take into account. Yes the starting point is a 50/50 split, however the Court then looks at what are known as the s25 factors which are found in the Matrimonial Causes Act 1973.
        The s25 factors can be found here:-
        http://www.legislation.gov.uk/ukpga/1973/18/section/25
        Both parties are expected to complete Form E's which is a full and frank disclosure of each of their finances. If the matter came to be decided by the Court then an opportunity for statements to be made would also occur. The Form E is pretty comprehensive and covers most aspects. Each party would also have to disclose their bank statements and/or accounts for a period to evidence their answers to the Form E questions.
        It is also encouraged that couples should try and negotiate a settlement between them so the fact that you have paid for the mortgage and property over the last couple of years could be a negotiating factor that could off set something else your ex is seeking.
        It is all about trying to negotiate a fair settlement which can be difficult when relationships have gone sour but is the aim.
        It is also recommended that mediation be attempted between the parties to reach an agreed settlement between them. Unless there is allegations of domestic violence the Courts would expect the parties to attempt mediation rather than go to the expense of having the Court decide the financial settlement which reduces the 'pot' considerably as well as being stressful for all concerned.
        Thanks for the comprehensive response and sorry to hear you have all been suffering with the lurgy!
        We have undergone a number of issues and changes along the way in how my ex responds, initially she was saying she didn't want us going after each others pensions as during our time together we have both had comparable earning jobs, she said initially all she wanted was her equity from the property, I agreed to get 3 valuations find the average, take away what is still outstanding and look to raise the money to buy her out by drawing down money from my pension thus avoiding the need to take on more mortgage however now her solicitor is claiming not just against my pensions going right back to the day I started work long before I met her but is also saying I should pay all her costs and pay her maintenance.
        We have no children together our own children from previous marriages are grown up in the 20s/30s with their own lives and careers.
        I suggested mediation to her to make a settlement the response was that her solicitor had advised her NOT to go to mediation as she won't get a fair deal!
        Much of this advice from her solicitors seems related to when I asked her how she was affording the costs of solicitors she said they had made an agreement that he would take a percentage of whatever he was able to get from me!
        Going back to the pensions, there are a number of complications, firstly I have military pensions, one is a service attributable pension I have been paid since having to leave the military due to medical issues occurring from my service going back since before I met my wife and to which over the last nearly 2 decades she and the upbringing of her 2 children have benefited from and to my way of thinking does not have a commutable value.
        When I divorced from my first wife which was toward the end of my time in the military and indeed military life was a big factor in the breakdown of that marriage, however we divorced very amicably and we agreed that when I reached the age to receive my military pension I would pay her 25% of each months payments, this was a personal arrangement we both agreed to as were all our arrangements with regard to my contact arrangements with the children who were still quite young then.
        I have recently exchanged Form E's with her solicitors as best I can but getting the CETV statements from my various pensions going back to when I was 16 is proving a lengthy time consuming process and the thing is whilst there is the potential for pension orders I cannot seek to draw down any monies in an attempt to pay off what she wants from the equity of the house which is complicating and delaying matters
        There is also the complication of the valuation of the house, unfortunately I have been subject to issues where the house and my car have been shot at by a neighbour with whom she is friendly on several occasions this year the damage left is currently 5 holes in the outer pane of the double glazing of the bedroom window, with such neighbour disputes needing to be reported as part of house selling I believe this would affect the original valuations on the property and indeed make the property difficult to sell. I have also written to her solicitor saying that as she is equally liable for the upkeep of the property I would look to her paying 50% of the cost of getting the window repaired a fact her solicitor rejects telling me to claim on the house insurance, this would then leave me with an excess to pay and indeed lose me any no claims bonus I have earned this of course dependent of the insurance company not seeing this as an act of aggression and of course this could be an ongoing need to claim as it has been damaged several times and as was the case with my car insurance claim on renewal my car insurance doubled in monthly cost and lost me 9 years no claims.
        Sorry it is such a convoluted scenario but perhaps you understand how this is so difficult for me to deal with without the kind support of members of Legal Beagles such as yourself.
        TIA

        Comment


        • #5
          Hi again

          It is complicated as you say. I recall a previous thread where you explained the 'arrangement' your ex has with the solicitor and the reluctance to attend mediation. I think I responded to that one with my thoughts on the mediation issue etc. I would point out that the divorce financial application will include all possible scenarios including maintenance and pension sharing. A lawyer wouldn't be doing their job if they didn't tick the boxes so to speak as once these types of settlement are closed off there is no going back. Has the lawyer actually said in correspondence they are going for the pension and maintenance or was it on the Court forms.

          I am still surprised that mediation is not being encouraged. It is unusual unless there are allegation of domestic violence and as it appears that you and your ex had a period of reasonableness between you albeit a while ago now, maybe there is a chance you could continue to deal with matters through negotiation/mediation. It seems that you have decided what she should have and how you will fund it, which isn't always going to be possible. The separation of your finances does involve dividing up the whole pot, which includes all assets each of you have, between you. The division is then based on the s25 factors, if the Court decides it.

          The issue with your neighbours may not affect the valuations. It appears this is personal which is horrible, but I would suggest is unlikely to affect the house price.

          As I mentioned the pension issue is complicated and the area in which you could do with some legal help. It all comes down to how big the pot is and the % split. There are of course a multitude of ways the split can be achieved but you may have to think slightly outside the box how it can be done. Many ways to skin a cat and all that.
          I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

          Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

          If in doubt you should always seek professional face to face legal advice.

          Comment

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