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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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Going through Divorce

  • pauljohnson
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11 Dec 07 #8834 by pauljohnson
Topic started by pauljohnson
Hi All,

I'm currently going through a divorce but would I’m unsure at where I stand in terms of selling my house.
If I could I would like to settle this without spending a lot of money on arguing the odds with my ex-wife, but of course, I will, to ensure I get a fair deal.
My Ex left me and my two kids, one 16 and one 20 in November 2006, at the time I was redundant from work and she was earning about £27000 pa.
She left home for another man and begun living with him about a month later.
Since she left she has paid me only £200 a month for our youngest child. She has not contributed to any bills or mortgage payments. I let her get away with this for so long as I was severely depressed.
A year on and I have fought myself and my kids out of debt, still living in the marital home. I run my own business that is still officially operating at a loss (because of my expense/set up reclaims).
I now wish to move on with my life and my business and in order to do this I would like to sell the house and settle the divorce now.
But is my wife (of 23 years) entitled to a 50/50 split? I have been told that she is only entitled to 30% because she's left the marital home for another man, is this true?
Any help you could offer me would be greatly appreciated.

  • WornOut
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12 Dec 07 #8850 by WornOut
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I was married just short of 31 years before I got the Absolute and I think your 23 years, like mine, would be termed a 'long marriage'.

My solicitor advised me that, given the length of my marriage, the court would be looking to a 50:50 division of the assets. She also advised that, in relation to the division of assets, the court would look to the immediate and long term needs of both parties.

My kids are in their late 20s, have never entered into the equation, so I have little experience of divorce involving minors. You have children and I believe from my readings about Ancillary Relief on various sites on the 'net' that Section 25 of the Matrimonial Causes Act requires the court to give first consideration to the needs of any minor child under 18. Dependent children over 18 can be considered, but are not the 'first consideration'. There are people on this site who know better than me how this would translate, but my guess is that the 50:50 split may result in a smaller share than 50% for her, because you have to provide for the needs of at least one of your children.

I left the FMH (to live on my own), but my solicitor has never made reference to a reduced entitlement because I walked out. My solicitor has advised that behaviour during a marriage is not taken into account by the court when looking to the finances, so I suspect that the person who said that your wife is only entitled to 30%, is referring to the fact that she is cohabiting, not because she left, or left for another man.

Cohabiting can have an effect on how the assets of a marriage are distributed, because the court, in looking to the immediate and long terms needs of you both, will consider the other cohabitee’s assets too. I believe this is how it works: Imagine your wife is living with a man who owns several homes and a couple of yachts - the court could decide that her needs are well taken care of and order that she receive a small % of the matrimonial assets. On the other hand she might be living with a man who rents his accommodation, has no savings and relies on state benefit - in that case the court might decide that she is no better off through cohabitation and rule as if she were living on her own.

I have recently applied for Ancillary Relief because my vindictive ex refuses to settle the finances. As I am deemed to be 'cohabiting', I have been advised that I have to provide the court with my partner’s financial details. This is all new to me, but I understand that the court (1) does not expect my partner to support me and (2) that I need to provide the court with my ‘view’ of his finances, not actual financial documents/statements etc.

I can't get residency in my partner’s native country, so have to flit back and forth to the UK as my visa requires. I find it ironic that in the UK I am deemed to be cohabiting, but in his country we are not considered to be in a 'de facto' relationship for residency purposes, because we don't share any financial commitments!!!

Hope this helps to answer some of your questions.

  • attilladahun
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12 Dec 07 #8851 by attilladahun
Reply from attilladahun
Paul
It is a long marriage so the starting point has to be 50/50
That is however not an absolute rule the Court

25 (1) It shall be the duty of the court in deciding whether to exercise its powers .... to have regard to all the circumstances of the case including the following matters, that is to say -

the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

[Here another financial resource is your wife's new partner's house, income and capital -that isn't in the pot nevertheless it will be considered by the Crt how W can manage.....eg whether it would be fair not to sell FMH-ironically the Court of Appeal recently decided in a case reported in Family Law in similar circumstances they wouldn't order a sale of FMH till adult children living with Dad left home] [We had a case where W ultimately settled for about about 35%-anor reason Dad could only raise about 30% and ironically the Dtr living with Dad lent anr 5% to pay off W]

[Now whilst 50% is the starting point -the Crt would allow you to raise £ to pay W what you can afford without doing damage to your business -and she would either settle if say you can raise 30-35% NOW OR take what you can raise and take a deferred charge on FMH for balance to be paid if you remarry, permanently co-habit with a waged person (say 6 months) or when the children both leave home, or order of the Court.)

(My gut feeling is your business in value terms will be largely irrelevant as this pays for C support and pays the bills with little surplus)

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

[ie her oblig to help support C -perhaps by letting YOU remain for years in FMH) (I dont think Crt would order a sale)

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
[You helping to look after C and paying off matrim debts]

(g) ...the value to either of the parties to the marriage of any benefit (for example, a pension) which ... (by reason of the divorce) ..that party will lose the chance of acquiring;..."

My gut feeling is don't sell FMH

Raise £ to buy her out on an income & Capital Clean Break

If after you have FMH sell then if you want.

There are dissadvantages for her wtg for her £ ie CGT to pay if value of FMH seriously increases so she may well settle now

Ofter a good tactic is to get a further advance offer and display you cannot raise more on mtge or the business and show her the £!!:)

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