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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.


Do you need help sorting out a fair financial settlement?

Our consultant service offers expert advice and support to help you reach agreement on a fair financial settlement quickly, and for less than a quarter of the cost of using a traditional high street solicitor.


JUST SEPERATED - GRATEFUL FOR ADVICE PLEASE

  • florence
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10 Jul 07 #1269 by florence
Topic started by florence
I am writing this on behalf of my brother who has just seperated from his wife of 21 years. He is 45 and she is a year or two older. As I'm sure you are all aware this is a stressful time for all concerned. It was my brother who finally decided to leave, although for several years his wife had told many that she did not feel that she loved my brother. She even told me their last holiday was "make or break". However, now that my brother has finally made the decision to move on his wife feels that she is the victim and h is at fault in all respects.

He has tried to be fair (in my view) by moving out of the house and continuing to pay the mortgage (as he has done all their married life) and all the utility bills. They have 3 children all 18 or older. Two of them still live in the marital home and all of them are currently employed. My brother has a very physically demanding job and has worked long and unsociable hourse for many years. He has tried to encourage his wife over the past 6 years to work more than a few part time hours each week in order to take the financial pressure off but she was, quite frankly. reluctant. Since their separation (some 4 months ago) she has informed him that she has been diagnosed with MS. She claims that this will make it impossible for her to work and has demanded that she received 80% of their curent assets. She says that this is what her solicitor has suggested she is entitled to.

Does anyone know what my brother can reasonably expect to pay. This seems grossly unfair as he has brought the lions share of income to the family. I believe he expected to pay her 50% of their assets and was considering giving her a larger share because of her recent health news. But this seems a travesty.

  • LittleMrMike
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10 Jul 07 #1274 by LittleMrMike
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The most disturbing thing, to me, about your post was that your brother's wife had been told by a solicitor that she was ' entitled ' to 80% of the assets. Another post currently on this website more or less says the same ; his wife started with a similar claim to 80%, since reduced to 70%.

Yours has been a long marriage, and your brother is right in thinking that he is unlikely to get away with less than 50%. But I am afraid I can't help you very much without knowing the income situation too. A Court will look at the whole picture - both capital and income - and not just part of it.

The fact that your children are grown up means no child support, of course, and in your case the fact that they are contributing towards the household expenses will reduce any potential liability on your brother for spousal maintenance.

I would not necessarily accept uncritically any claim by the wife that her disability prevents her from working. In the longer term, unfortunately, it clearly might ; but in the short term, could she not register as disabled and thus qualify for preferential opportunities in seeking employment ?

I would also think that this lady's disability is likely to entitle her to benefits, if not now, then perhaps further down the line; you could be talking about Disability Living Allowance ( both care and mobility are possibilities ) and sickness or disability benefit, whatever they call it these days. Your brother should certainly investigate this aspect because it could again reduce your brother's potential SM liability.

I certainly think an 80% share is very much on the high side, the basic rule is that assets are divided equally unless there is a good reasons for departure ; disability is indeed potentially one of the reasons for departing from equality. But there is no fixed ' entitlement ' - in the end, if you can't agree, the Court has to decide the split for you.

I hope you might find this helpful to some extent, but perhaps wait and see what other people say. You can always send me a private message if need be.

Mike100468

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10 Jul 07 #1277 by Princess Fiona
Reply from Princess Fiona
I think what's needed here is a medical prognosis about the wife's illness. It's not uncommon for somone with such a condition to be awarded spousal maintenance for life. Hard though it might be to take, and depending on the assets available, after number crunching your brother could be better off accepting a smaller capital share for a Clean Break.

Bear in mind her sol will advice at the higher end of the spectrum, whereas a sol acting for your bro would be at the lower end so there's room to negotiate. Generally the higher the capital settlement is in favour of somone the less claim they have to SM.

  • florence
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11 Jul 07 #1299 by florence
Reply from florence
Thank you Mike. Some really useful suggestions here. I went with my brother today to see a solicitor and I must say that the message we seemed to get from him was that my brothers wife's offer was perhaps not too bad. He said this in view of the fact that she had agreed not to make a claim on his pension (which would not be huge) or his Tesco shares (worth about £5000) and that she would agree that this would be a full and final settlement. So no claim for spousal maintenance. I believe he felt her recent illness could well affect the decision of any court when divvying up assets, especially if she finds herself unable to work. Unfortunately my parents also transferred a 25% share of there home to my brother now, so effectively she could include that as part of her claim even though he will not be able to access the funds until there death. She has, at present, discounted this from his list of assets.

In terms of finance, his two children living at home make little or no contributions to my brother who continues to pay all the household bills. My brother earns approximately £35,000 a year whilst his wife has only worked a 12 hour week for many years (probably netting around £200 per month). The unfair thing is that he has been trying to get her to work full time for many years. Often saying he feels like being in a boat with his family and he is the only one rowing! It seems that the courts would find this an irrelevance. They only seem to take account of how the couple will finance life after the split and not how they contributed before that.

Would you know if it would make any financial difference if he separated on grounds of adultery.

  • LittleMrMike
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11 Jul 07 #1301 by LittleMrMike
Reply from LittleMrMike
I am glad you have been to see a solicitor. The answer to the question you asked about adultery is that it is virtually certain it would make no difference, following the House of Lords decision in the Miller case.

My understanding ( and I am not a doctor so I stand to be corrected ) is that it is not easy to give a definite indication of the likely outcome in MS. But the fact that the outcome is uncertain, and that it could leave your sister in law seriously handicapped, means that the Courts might be reluctant to make an order which did not include some element of spousal maintenance, even if it was only a nominal order ( a nominal order means some derisory amount like £1 per annum, which you don't actually pay, but the point is that it can be increased later if her income falls ). I have noted the comments of Fiona, and although I don't know this lady at all, she strikes me as being very knowledgeable and her views are set out with exemplary clarity. The fact is, as she says, that a disability can often result in a maintenance order which can last a lifetime, and I should know, because I am on the wrong end of one, and for precisely that reason - my ex has a serious disability and is totally unemployable. I have been paying it now for 24 years. So if you are offered a Clean Break, you have to balance the capital loss against the possibility of having to pay SM for a very long period.

I assume your solicitor will have told you about a ' Consent Order ' - what it is, and why it is in your brother's interests to get one.

Mike100468

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