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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.

House sale

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19 Aug 12 #350554 by WYSPECIAL
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soulruler wrote:

It is covered under section 37 of the matrimonial Causes Act that you cannot claim in financial proceedings money passing under a will - inheritances not yet received.

Surely this is a little different though. It isn''t money passing under a will, it has passed some years ago. Surely the fact that it is in trust is the same as if it were in a bank account as it can be taken out at any time?

They always kept their finances separate and he is not coming to the table and disclosing his financial affairs or his potential inheritance.

The way I have read the OP posts it is she that has suggested that there is no need for financial disclosurer. There may not even be that much disparity in pensions when you factor in that although he has contributed longer his salary is much lower.

It''s also a long time for both of them before they can get any benefit from their pension funds and while a pension fund is very nice to have you can''t live in it or feed your kids with it.

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20 Aug 12 #350608 by soulruler
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Everyone who goes to court (or is involved with negotiations out of court) is obliged to be honest and be open in negotiations.

When the family division considered Imerman v Tchenquiz they also confirmed that other divisions such as Commercial, Chancery and Queens Bench were unlikely to be as lenient on litigants or legal teams as Family.

This is very important, as it seems to have been brushed under the carpet that litigants, lawyers and judges all have the same responsibility in Law to help the courts come to a decision that is just and within the remits of the law.

Both the solicitors and the barristers must comply with their code of conduct which has been written and codified in accordance with many acts but especially the Legal Services Act 2007 which covers both professional negligence (unfortunate/careless mistakes) and Fraud (the key components for proving Fraud are By misrepresentation, by failure to disclose and by abuse of position).

In order to gain rights of audience lawyers have to pass an exam and they have to be able to prove that they are competent, that they understand substansive law, can advise their clients on the possible outcome of the case, they must show that they explain to their clients issues regarding costs and outcomes, they need to be able to understand the good and bad things about their case, be able to show that they can give outline submissions, examination and cross examination and closing speeches.

They must show that they have in depth knowledge and keep up to date, show how they research their case. They must always be courteous to everyone in court, courteous to their client at all times, the judge and other third parties.

They need to know when and how to withdraw from a case.

I stick by what I say, someone who is not named as a beneficiary of a trust cannot claim that they need it and it be included in the marital aquest just because both parties conclude that the marriage has broken down. The marital aquest is just that. It is reasonable if a trust will agree that the potential beneficiary can borrow or even have an advanced inheritance from the trust to help one party buy out another.

In the case of the OP she states that the equity in the house is in the region of £100,000. In normal circumstance where neither party is in a situation to arrange a loan staying on the mortgage then there is a forced sale in these circumstances - in this case it would leave the children having to loose their family home and be uprooted.

Possibly, if the OP and her stbx would agree she could buy him out of the equity by arranging a loan or having an advanced inheritance by way of gift. However, I do not believe from the information that is posted on here that the joint bank account or the trust can be a marital asset or even income being marital income based on the information supplied which is that non of the money has been used for her in the past and that the trust is primarily for her mother.

Anyone interested in understanding the onerous obligations of advocacy in court can read litigation rules 23 February 2011 entity rules which is published on the net.

If a departing spouse attempts to claim the benefits of a trust and maybe even delay the OP from divorcing because a) her father mentioned spouse as a possible beneficiary and b) the money which belongs to her mother is now held in an account of which she is now a party - so the account will pass to her on her mothers death then I would say that is taking advantage of a position of trust (based on insider knowledge).

I realise that the OP has confirmed she has stock and shares but also that her husband is not disclosing his finance and that they have always kept them separate during the marriage.

At the moment it seems like these people are at a stalemate, no good for anyone least of all the OP''s ,mother and sister.

If this goes to court then the OP needs to be open and honest and that goes for her husband too. I just hope that she manages to avoid too much distress for her wider family including children if it does come to that.

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20 Aug 12 #350630 by cookie2
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Jeeze WTF overkill! I don''t think this debate is helping the OP at all.

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20 Aug 12 #350649 by soulruler
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Well, I am entitled to be as stupid as I like:) .

However, I do not believe that I am stupid having defended three application written by my husband and his various legal teams to have me put in prison (which would be more or less for life) and attended court 32 times in a small money divorce and listened intently to what the UK Judicary have to say on the matter of Trust, orders within powers and learning as much as I can about the need to be honest, disclose information, not to mislead or misrepresent and to comply with orders as written by the court.

My ex husband and my ex best friend however take a different view. They believe that they can allow claim after claim, refuse to obey court orders, attend court when they are not supposed to be there, insult the judges with inflamatory and derogatory remarks, make malicious and unfounded allegations up about my conduct and that of my previous legal teams - misrepresentation by a legal team is a reason for an appeal btw as long as you dismiss them and get competent legal assistance and my husband fail to come to court for almost two years and correct the applications and malicous allegations that have been put to me and the hideous service against my mother and my brother trying to drag them to court for no good reason.

Whether I am wrong to trust in the bulk of the judiciary and whether I am wrong to stick by my obligations in trust as a trustee of my fathers will, a trustee of my mothers will and under my obligations as guardian of my disabled son and trustee of his direcct care package and his DLA we will see.

However, we will find out as my rights to privacy and family life have now been denied as the same International Trust Judge who told me that non of the accounts my ex was attempting to claim as a liquidated debt in family could be used to pay him and his legal teams out has now written an order confirming that the Master in RCJ who is a Supreme Court judge by way of jurisdiction and an expert on medical evidence will be ajudicating this caes in Open Court in the jurisdiction of the RCJ and Supreme Court.

I do not believe my post is overkill, I believe that everyone involved in family proceedings whether they are a Judge, a lawyer, a non paid trustee or a litigant has the same obligation in law to uphold justice and that lawyers cannot and should not abuse a client or clients, ignore undue influence, ignore evidence and the law simply because they are interested in financial gain and believe that they can quote per incurium (out of powers) precedents, knowing that to be true or in ignorance as a reason for protracting proceedings in financial remedy.

It is interesting that the OP is not coming back into the debate but she obviously has a lot to think about both in terms of her disclosure, the health and wealth of her family and what she may or may not know about her own husband.

I would add that as her father died a long time ago and she states that no money has been paid out of his trust that in my mind is another reason why her current spouse has a claim on the trust; reason being her father had no reason at the time of his will to suspect that the marriage wasn''t going to work out.

It would be even more relevant if the longer ago the father wrote the will before his death and the time that has elapsed since.

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20 Aug 12 #350655 by Fiona
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Posters often aren''t interested in debate and may find it confusing or off-putting. They just want to know where they stand in their particular circumstances and our experiences of our own cases aren''t always relevant. It is possible that provided it can be shown that the assets held in trust are not regarded as personal assets a court will take the view that the assets are beyond the scope of the family court, but it depends on the particular circumstances.

The point is someone independent with knowledge and experience of the law needs sight of the documentation to advise and a qualified family solicitor is in the best position to do this initially.

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24 Aug 12 #351673 by HCNO2012
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Thanks for all the replies.

I get the picture. I wont be getting any money out of the house any time soon if ever!

Would a Mesher order be a possibility?

Regarding trust fund and joint account with my mother it has never occured to me that they couldn''t be included.

I''m a bit confused by Soulrulers posts though. Some of them seem to suggest that my husband will have no claim, some that due to the length of time elapsed that he will and some even suggest the money is my mothers not mine and my sisters.

Can anyone clarify?

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24 Aug 12 #351690 by soulruler
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The trust sounds like a discretionary trust and asks that you consider mother as a main beneficiary and that it is wound up on her death.

There is money which it sounds like belongs to your mother and your mother wanted you to be put on the account as a joint account holder - I don''t think there was any other detail.

You have been separated for 18 months and your finances were always kept separated.

We are moving to non fault divorce so I don''t see why having moved out that you cannot Petition on grounds of unreasonable behaviour as your husband has changed the locks and doesn''t want to give you a key I don''t think he can logically argue that he disagrees that the marriage has broken down otherwize it would be reasonable at the very least to expect to be allowed back into the house.

You say that you are happy for him to remain in the house whilst the children are young. You have not received an inheritance and have proven that for 18 months you can house yourself.

I think you should be paying CM and get cracking with that immediately - why disadvantage the children or the husband you have left.

Generally, if I understand rightly courts try and avoid meshers (deferred sales) because of possible complications but it seems to me if he can indemnify you from the mortgage, you can accommodate yourself and your children when you visit, he can take on the mortgage debt, you agree that you will look at a potential sale when the house can be sold only looking for the part of the equity that you paid into for the course you lived together - rather than expecting to get half of any equity that may or may not be available when he has paid the mortgage off that you could both avoid extensive legal wrangling, the potential of your Mum and sister getting involved into proceedings (partly for your mum to explain why she made you party to money which hasn''t been spent since you became a party and partly to go into the details of a trust which you state no money has been paid out to you or others since created) then I think everyone will avoid a huge amount of heart ache, financial costs, trips to solicitors.

That is my thought based on what you post here and my understanding of the Law - I do think however you should consult a trust lawyer to check that the trustees are doing their job (so you and your mum and sister).

I was a trustee of my fathers trust (which came out of his will when he died in 2003).

Ex made vigorous claims against the trust stating that I could live off it and have capital off it and it was part of the marital assets. It was not, I was a trustee and my mother the main beneficiary which is why she was not a trustee.

In the end to make it even worse, after huge amounts of effort and disclosure by me (including that the solicitor involved wrongly put my mothers new house into the trust so I had to get it taken out - husband was at that time trying to claim my mothers bungalow as part of the marital aquest) in the end, after months of work I found out - when I visited and paid for an independent trust expert that that my fathers trust had been written wrongly and it was in fact a failed trust - by that time there was hardly any money left in it to make matters worse.

I advise you take advise to make sure your family is doing the right thing.

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