The petitioner has moved out of her 2 bed council flat, but not given notice. She's amassed a month's rent arrears and also council tax, these were her only 2 responsibilities. She has changed her mind about giving notice on her tenancy and now wants me to sign 4 weeks notice with the council to quit our joint tenancy thus I would be surrendering all housing rights.
When asked what she is offering in return, she has (temporarily) come down from £15K potential cash settlement to £5K; I believe that she will have changed her mind again by tomorrow so asked what guarantees she could make. She has set up an appointment with her solicitor tomorrow morning, we are both due at the council in the afternoon. She believes her solicitor can draw up an agreement and witness it to the effect that we agree a £5K cash settlement in return for me giving notice on the flat and making myself homeless. (There are no children).
If I thought this was legally binding I might be inclined to accept; what do people think, I don't have a solicitor yet as I'm still recovering from the shock of the divorce. The council say I can give 4 weeks notice and change my mind at any point within that period.
I'm aware that no one can give a definitive answer, just interested in people's opinions and whether anyone else has encountered this sort of arrangement?
I will try to be as concise as possible ; please let me know if you need further elaboration.
(a) If divorcing spouses are both living in the same house, and both want to go on living there, then there is an issue which has to be resolved by a Court if the parties themselves cannot agree.
(b) One obvious question in my mind was - is your wife justified in claiming £15K against you ? Are you considering surrendering your tenancy in return for your wife abandoning a claim which should not have been made at all ?
(c) I may be missing some great truth here, but what is there to stop you saying to your wife, that you are agreeable in principle to her proposal, but you need to find time to look for accommodation on your own account. When you find it, and only then, will you transfer the tenancy into her sole name ?
(d) There are a number of ways to make your agreement legally binding. But what I recommend is a Consent Order. There is one aspect of this which you haven't covered, and could be vital. You want to shut out any future claims by your s2tbx against your income. You need a Clean Break, if you can get one, otherwise your wife could come back years later and try to claim maintenance if there is a change in circumstances.
(e) A Consent Order need not be difficult or expensive. I recommend you find a solicitor who will offer you half an hour free and check this advice out with him/her.
Thanks, Mike, for your comprehensive and balanced answer. It has made me stop and think that, once again, I am dancing to her rather haphazard tune and clearly there is nothing to stop me agreeing in principle and then taking time to explore my options. In any case, predictably, she has been back on to me today and now doesn't want me to attend the solicitor tomorrow, just the council; clearly I will not be signing away my rights without some legally enforcable agreement.
On the Clean Break and Consent Order (which I thought were the same?; I had the impression that this was agreed in court (she hasn't even petitioned yet, but says she is pursuing that tomorrow.) Can a clean break be agreed without recourse to court and, if there were to be no agreement and we went the full legal course, can the court enforce a clean break against her wishes?
The £15K was a completely arbitrary figure that she had settled on (after 10, 25 and 40K; I've had a number of people ask me why she believes she should receive anything given the 14 month marriage, no house equity and the dog as the only dependent. I kind of had the impression that the wife always gets something and I have amassed large cash savings (prior to the marriage and cohabitation) which grew with interest by about £10K during the two years we've been living together. Someone did suggest that she was entitled to a minimum of 50% of that figure, but that the court might even give her 10-20% of the total pot, they didn't say why so I thought it might be standard practice? I think I might have considered £15K for a quick Clean Break before she started talking about me losing my right to council housing, I would expect some reciprocity for that.
I receive £4K a year from an ill health pension whereas she receives £7-9K in benefits, but hers would increase if I move out as she could then claim Income Support. The Divorce Calculator said she should be paying me £250 per month maintenance, but I don't think it takes benefits as a special case.
Does the court only consider historic income and spending or would it consider her claim for Income Support if I left the home?
I take your point about a solicitor and am looking for one. Sorry for so many questions, I throw them out for everyone so please only answer those you feel comfortable with and thanks again.
Well, well, well - this is getting complicated, isn't it ??!!!!
Firstly, let's deal with the easy bits !
A Consent Order isn't the same as a Clean Break. A Consent Order is any order made by a Court where the parties are agreed on the terms of the order the Court is being asked to make. The order sought may indeed may be a clean break, but it doesn't have to be.
Yes, a Clean Break can be imposed on a spouse against his or her wishes. Yes, the parties themselves can agree on a clean break without involving the Court, BUT to make it legally binding you need to have it ratified by the Court with a Consent Order.
You don't say how much savings you have, and how much you had at the date of your marriage. The fact that your marriage was very short will not help your wife, but I'm inclined to think she is going to get something here. It would help me to know the answers to these two questions. However, from your wife's point of view, there is a great big snag if she receives a capital sum, and she is probably blissfully unaware of it. Dare I suggest it, her solicitor is probably unaware of it as well.
If your wife has more than £16,000 in capital she cannot get Income Support.
Capital means anything that could provide her with a source of income. It includes savings, property and land (but not personal possessions or the home where you live).
Capital of more than £6,000 will affect how much Income Support she will get. She will be treated as getting £1 a week in income for every £250 of capital (or part of £250) above the £6,000 limit. This is regardless of how much money she actually receives from her capital, if any. So if she gets £15K she gets docked £36 p.w.
It will also affect her right to claim Income Support and Council Tax benefit.
I think spousal maintenance is a non-starter, frankly, for both of you. For a start, you have only been married a very short time. Secondly, when it comes to benefits, rates of benefit are set on the assumption that this is the minimum the State thinks you need to live on - hence if your wife had to pay you anything she is left with less than the bare minimum she needs. Even so, I would want her claims to spousal maintenance dismissed if I were you, in case you win the lottery or inherit a fortune from Aunt Jemima.
Have you considerd disability related benefits ? Hard to say without knowing what your disability is. The main benefit is called disability living allowance and is tax free and paid in addition to any other benefits, and is not affected by capital.Other possibilities are incapacity benefit and disablement benefit. I'd get down to a CAB if I were you. In low income cases like yours, the availability of benefits can be critical.
Thanks, Mike. I had no idea DLA wasn't affected by capital; I probably should have been claiming that for years. I will keep trying CAB's there must be one around here that can retain its' volunteers!
Thanks for clearing up the Clean Break question.
Two years ago (Feb 05) when we started co-habiting I had cash and investments of £175,000, having also sold my flat to move in ( that's included in that amount). Last month it totalled close on £185,000. Clearly we have relied on this nest-egg as my earning potential is severely curtailed.
I think my wife is planning to spend the money immediately and then claim IS.