Helping mum with divorce!

[the worm that turned]

Hi All

I am helping my mum with her planned divorce from her husband. I will try to keep emotion out of this. He is not my father, (she divorced him for adultery many moons ago). The latest chap did not have the greatest work ethic, had been married twice before and brought a LOT of debt to the marriage plus other baggage that almost ruined my poor mother, both financially and emotionally!

So, in short, mum doesn't have much in the way of money. He has cleared off (for almost 18 months now) and it would appear is shacked up with a previous wife, but not officially, and has again left her with a lot of debt!

A solicitor did advise attempting to divorce him on the grounds of unreasonable behaviour. I don't know what constitutes that so question 1) What would constitute unreasonable behaviour, and question 2) if she were to apply for a divorce, does she need a written agreement from him that he agrees with the assertion of unreasonable behaviour, or would he be served papers from the court to agree/disagree?

The solicitor also advised getting a written agreement signed as a deed, which I think is called a Separation Agreement in England (where she lives btw as does he). I have drafted this for her and it covers all the usual headings, matrimonial home, debts, children (there are none from the marriage), spousal maintenance (none). The plan is that he walks away with nothing and looks after his own affairs, and mum walks away with pretty much nothing and walks away too.

Matrimonial Home
Mum bought a house with an interest only mortgage over 10 years ago (prior to marrying him) and next year has to pay back the loan, with no way of doing so other than selling the house. Her name alone is on the deeds (title at HM Land registry) and he features no where. The plan is that via the Separation Agreement he would waive any right to any equity that has accrued. He has contributed very little to the house payments and really has stitched mum up imo (but keeping emotions out of it - LOL).

Question 3 - Can she sell the house prior to the divorce and gift some of the equity to her sons to avoid inheritance tax, or question 4 or gift the house to one of her sons and rent from him? Or would this be a no-no with regards to a planned divorce. Legally speaking, is there anything stopping her from doing either of the above, bearing in mind the mortgage and title/deeds are solely in her name, and come mid-next year she has to sell it anyway to pay back the mortgage.

Question 5 - Assuming he agreed to sign the Separation Agreement, is it likely or indeed probable that a Judge may reverse the terms of the agreement and decide that the equity from the house should be shared?

I appreciate there are a lot of questions there but any advice/information greatly appreciated.

Cheers

[FionaC]

Re: Helping mum with divorce!

Hi there!

I understand you have a lot of questions and I am sure my answers will create more, it is a complicated situation!

Firstly, what is unreasonable behaviour? Well, it has to be more than would be expected as just the normal difficulties or unpleasantness that happens from time to time in any marriage. Other than this it can include anything; undermining self esteem, verbal abuse, lack of support and comfort. As you can see the list is a long one.

If a petition is issued (sent to the court) it is possible to defend the divorce and argue in court, in a hearing, that the incidents didn't happen. This is very rare. Usually it is possible to force through a divorce based on unreasonable behaviour- but not always.

With regard to financial matters a deed of separation cannot oust the jurisdiction of a Judge and so if circumstances change then the deed may not be upheld. To have any chance of ensuring a deed of separation is upheld both parties need to have legal advice and to have had full disclosure of the other persons assets or lack of them.

Please be aware a deed of separation is designed as a temporary or holding document until you can get an order of the court regarding financial arrangements within divorce proceedings.

It is important to know that obtaining a decree absolute or a deed of separation does not dismiss the other persons financial claims, you need an order of the court for that. If a spouse re marries then they lose most of their rights to make a financial claim but not all of them.

With regard to selling the house without knowing figures etc I can't really comment. I know they haven't been married for 10 years but not for how long they have been married.

Provided her husband agrees your mum can do anything she likes. The house will be a matrimonial asset unfortunately even though she bought it before they met because it is the matrimonial home. Whether your mother's husband gets anything from it will be down to how the court views their respective needs.

Simply on what you have said in this e-mail then your mum would probably be best sorting out financial matters with her husband before selling the property. Arguably they are already involved in divorce proceedings and so the property should not be sold.

I hope all this helps.

best wishes