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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.

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Property purchased prior to marriage..help

  • kacee
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12 Aug 07 #1922 by kacee
Topic started by kacee
Hi, this is my first time on this forum and I hope I can get some sane advice.

I split with my ex a year ago and started divorce proceedings in January this year. We are only now at the point of making 'offers' of financial settlements. This seems very slow to me.

As a bit of background we don't have a huge amount of money to 'divvy' out and we both earn similar although I have consistently earned less. Prior to marriage I bought a house for my mother to live in from the proceeds of selling my flat. We cohabited at his house at the time. After marriage we sold his house and used the proceeds to buy a house which is in both names.

The main sticking area is my mothers house. He is stating through his solicitors that he is entitled to 50% of the asset value, not taking into account cost of sale, capital gains or the fact that over the last 6 years my mother has spent over £30k renovating and maintaining the property.

My solicitors have been fairly useless as after 7 months we are in the same position as when I first approached them. The key difference is that if he gets 50% I will be forced to sell to give him approx £30k according to his calculations. According to my calculations, taking into account Cap gains and my mothers interest, he would owe me circa £10k.

Does anyone know for sure what is likely to happen. This is looking like going to court and I'm concerned how I'm going to pay costs!!

Many thanks

  • Fiona
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12 Aug 07 #1935 by Fiona
Reply from Fiona

  • LittleMrMike
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12 Aug 07 #1939 by LittleMrMike
Reply from LittleMrMike
Dear Kaycee,

It would help me to answer your query if you could tell me

(i) the length of your marriage ;
(ii) when you say ' your mother's house ' do you mean that you own it, but your mother lives in it ?
(iii) Is there any formal tenancy agreement in your mother's favour and does she pay any rent ?
(iv) Looking at your house, you say it is in joint names. Do you have any idea of the value, and how much is outstanding on the mortgage ?
(v) You have not mentioned children ; do you have any ? ( This could be important in practice ).

One of the first questions I would ask myself is, where are you both going to live if you split up ? Do you have any thoughts about that ?

Normally the position is that there is only one house, that being the one where the spouses lived while they were married and I'll call it the former marital home or FMH. The House of Lords, in the recent leading case of McFarlane v McFarlane, drew a distinction between what they called marital assets - examples would be the family home, the family car, joint bank accounts, where there would be a strong presumption of equality of division, even after a comparatively short marriage, and who contributed to the purchase of these assets would not be all that important. Even after a short marriage, a non-contributing spouse might well be entitled to a share.

But there could also be ' non marital assets ' and to give you an example, let's suppose that the wife is a keen equestrian, as my wife was, and had a couple of very expensive and valuable show jumpers. The husband, we will say, wasn't interested in that sort of thing. So the wife would probably be allowed to keep her horses, and the husband might be allowed to keep his Harley-Davidson motorbike. For non-marital assets the presumption of equal division is rather less strong.

I would say that this house of yours would be classified as a non-marital asset and therefore the husband's case for a share is weak, especially if he didn't contribute to it and your mother carried out work at her own expense which increased the value. But these are only first thoughts, so if you can answer my other questions I may be able talk more intelligently.

Mike 100468

  • pembslass
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13 Aug 07 #1955 by pembslass
Reply from pembslass
Not sure whether this will help or hinder as I am new to this too but this is what my solicitor told me last week.
Any property owned by either side at the time of marriage/divorce etc is classed as an asset and must be taken into account when resolving the financial matters.
I owned my own house prior to my fiance then husband moving in. He took over all bills when we married as he earned loads and said we didn't need my income. Three weeks ago, and twenty months after marrying, he left without warning whilst I was collecting the dogs from kennels where they had been whilst we were on holiday. I have had no word other than a letter from Royal Mail to say he was redirecting his mail.
My solicitor though has said that whilst it has to be taken into account, he would have to prove need. As he has £100k sitting in his bank account and brings home £2500 per month (net) it is unlikely that he will be entitled to anything.
I know its slightly different from your case but thought it might help someone. Will let peeps know how case progresses as filed for divorce this week.

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