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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.


Mesher Order - aarrrghhh!

  • pauljoe
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07 Oct 12 #359674 by pauljoe
Topic started by pauljoe
Hi, I was wondering if anyone can provide some advice please.

My wife and I split up in Aug last year after I discovered she was having an affair. I have been living in rented accommodation since then, whilst she lives with our 2 kids (aged 12 and 15).

There is approximately £220k of equity in the “matrimonial home” after deducting the mortgage. I have £40k in pension and she has no pension. She has been paying the very small mortgage on her own since I moved out.

For the last 6 months I have been negotiating a Consent Order that basically means her and her boyfriend of 18 months will buy me out of the matrimonial home.

I am the Petitioner and Decree Nisi was granted in June 2012. I was waiting for the Consent Order to be approved by court before I apply for Decree Absolute.

Her solicitor had agreed to split the assets 50 / 50. I was expecting to get in the region of £90k from her so that I can get back onto the property ladder.

One week before signing the agreed Consent Order she changes her mind because she “is not ready for him to move in, and likes her independence”. She is unable to buy me out on her own (she earns £16k per year) and has indicated that she will see if she can be awarded the house until my youngest reaches 18 (Mesher Order).

I have the following questions:

1. What are the chances of her getting a Mesher Order in place, considering that there is plenty of asset in the house? I am willing to buy her out and pay her £130k, which means she can get her own mortgage for a 2 / 3 bed house for £210k.

2. If I threaten to move back in will she be able to get a court injunction against me to stop me doing this?

3. I was waiting until the financial terms were lodged with the court (via Consent Order) before I apply for Decree Absolute. Can she apply for the Decree Absolute regardless?

4. Can I apply to the court to resolve the issue, e.g. force sale of the house / me buy her out?

  • Fiona
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07 Oct 12 #359718 by Fiona
Reply from Fiona
1. It would be unusual for a court to award a Mesher Order if the former matrimonial home is larger than required and it could be sold to release equity so both parties can rehouse.

2. Possibly.

3. The Respondent can apply for the Absolute 3 months later than the Petitioner i.e. 4.5 months after the nisi

4. You can make an application for financial orders and unless there is agreement during proceedings the judge will determine how the assets are shared. If it is then ordered the house is sold or there is a buy out the order can be enforced.

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07 Oct 12 #359739 by pauljoe
Reply from pauljoe
thank you for replying Fiona.

I was wondering if we don''t manage to reach an agreement can she (the Respondent) make an application for a financial order re. the house?

  • Fiona
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07 Oct 12 #359745 by Fiona
Reply from Fiona
Either party can make an application for financial orders. The exception is someone who is remarried can''t make a new application but if they have already a claimed before the remarriage the application can proceed.

  • LittleMrMike
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08 Oct 12 #359782 by LittleMrMike
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Pauljoe, I entirely concur with what Fiona has said, but would like to make a few comments of my own.

To your questions, I think I would have replied something like this :

1. Nowadays, as I understand, Mesher orders are something a Court would avoid if a reasonable alternative is available. In your case, for the reasons Fiona has given, a Mesher order is perhaps unlikely, but I will return to that later.
2. I would have said that, if the FMH is no longer the place you call '' home '' and becomes '' the place where I used to live '' then I''d say the odds were against you. This isn''t set in stone ; if, for example, you had moved into a short term let as part of a trial separation, then your chances of being re-admitted are rather better.
3. Fiona''s answer is correct and I have nothing to add.
4. This, my friend, is where I want to add to Fiona. The situation that you have now is,to all intents and purposes, a Mesher. She is living there and you are not. May I suggest to you that she has no incentive to change the status quo ? She could apply for a financial order but why would she want to ?

You too can apply for a financial order if you have not done it. You say you have a solicitor ; may I suggest that you see him/her, and review your position ? Because the longer you leave this alone, the greater the risk that you will be creating a de facto situation which a Court might be unwilling to upset.

LMM

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