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threats to reinstate Spousal Maintenance

  • Go slow
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01 Aug 12 #346580 by Go slow
Topic started by Go slow
Hello, back after a while and just wanted some advice.

My partner agreed to pay a fairly high level SM to his ex wife and this order is due to expire in November this year (nominal sum to be paid after expiry and she is free to return to court if circumstances change).

Her circumstances have improved in that she moved house (he gave her the martital home as part of the settlement and she bought a smaller house with her partner, in joint names) she made a significant amount from the sale of the marital home, reducing her mortgage and has been sharing this with her partner. She is now claiming to have split with her partner (VERY convenient timing) although there is evidence that she may be claiming this just to be able to get more SM and legal aid as he appears to be around a lot despite having supposedly moved out a couple of months ago. It seems that she is now in a position where they will have to sell their house and move again to a smaller and cheaper property, in her sole name (although her mortgage is likely to be minimal). Despite having shown signs of selling their current house and moving to a smaller property, she appears to have decided to remain in her current home on her own for the time being and fund this through demanding that my partner continue to pay her SM. Is is not the case that her ex partner is responsible for meeting the mortgage costs if she cannot, and not my partner?!

At time of divorce (Oct 2009, they were married for 7 years) she had a 12 yr old son living with her (not my partners) and 7 yr old daughter (my partner''s and child maintenance continues to be paid). Her son is now 17 and has not lived with her for 2 1/2 years and lives independently.

My parter''s circumstances have changed as follows: we have had a one child since the divorce, aged 16 months, and are due to have another in a few weeks.
My partner now has a mortgage in his sole name, he was renting at the time of the divorce and and his outgoings were minimal and he was honest about this in his financial statement, not realising that this would financially disadvantage him in the divorce, ie he would end up paying far more SM.

I also have a house that I cannot rent out at present as it has a residential mortgage and this is using nearly all my wages I am trying to sell my house and on paper it appears that I may have around £20-35,000 capital but £30,000 of the original cost (deposit and some money for furniture) was loaned to me by my parents and I need to pay this back when/if I manage to sell the house, although there is no formal loan agreement in place. I have no other savings/capital.

I am due to take a reduction in wages as I have just started my maternity leave which will mean that I and our children will be mostly dependent on my partner. I am also intending to stop working after my maternity leave as it is not financially viable enough to pay for childcare and for me to continue to work.

Although my partner is a fairly high earner, they had agreed during the divorce that his ex would seek full time employment (she has only ever worked part time)once their daughter turned 11. She appears to have made no real attempt to have done this even though my partner is convinced that her current employer would take her on full time as the work is available (they both work for the same public sector employer). She has also been living beyond her means such as having cosmetic surgery etc... Whereas we have been frugal and attempted to live within our means.

She has now asked that he continue to pay SM at half of its current rate for a further year despite the fact that her financial circumstances have improved and his outgoings have significantly gone up and his earning have dropped a bit. She has said that if he will not do this she will return the matter to court. He has refused to pay her any more SM.

Please can someone advise me:

What are the chances that she will be able to secure any further SM from him in court?

We have held off buying essential items for our home which really need replacing in an attempt to live within our means and build up a small amount of savings so that we can afford to get married. However, now being aware that this will not count in our favour, would it make more sense to just purchase these things now as otherwise we may end up having to give the money to his ex anyway?

Will the fact that my earnings will go down in a few months be taken into account?

Will the fact that I am intending to stop working at the end of my maternity leave be taken into account? Depending on when I decide to do this, I may have to pay back my company maternity pay, can this be factored into any financial statements?

Is there anything I need to do/provide/prepare to prove that most of the money from any future sale of my house is owed to my parents and does not belong to me?

Is there any way of demonstrating to the court that she is in fact still living with her partner and this very conveniently timed split is likely to simply be an attempt to secure further SM from my partner and attain legal aid to do so?

Will the court take into consideration that she has not lived within her means and spent money on cosmetic surgery/expensive holidays etc...?

Finally, as part of the settlement, my partner agreed to pay towards a mortgage based insurance policy from which they each benefit if the other dies. he was not happy to agree to this but did so to avoid a lengthy court battle. Given our change in circumstances and the fact that as time goes on, any potential benefits from such a policy are significantly reduced, what are his chances of having this stopped if the matter does return to court? She has recently tried to get him to sign a document so that she is the sole benefactor of this policy, Is there likley to be any obligation/requirement for him to sign this?

Advice on any of these question would be appreciated.

Thank you.

  • dukey
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01 Aug 12 #346586 by dukey
Reply from dukey
Are you absolutely sure the order does not contain a section 28(1a) bar?.

  • hawaythelads
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01 Aug 12 #346590 by hawaythelads
Reply from hawaythelads
I lost the will to live half way through so did skim read a bit.
However,at the end of the day.
Once the current order stops it''s up to her to take him back to court.
So stick to his guns and make her take him back to court.
If she does at all.

All he can do is put his side of the argument forward and see what the judge decides.
But surely at some point the fact that she is female can''t mean that she can just get a free handout for life.

All the best
HRH xx

  • Go slow
  • Go slow's Avatar Posted by
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01 Aug 12 #346593 by Go slow
Reply from Go slow
Hi, Dukey what is a S 281 (a) Bar? I don''t have it to hand, but having had constant problems re this, I am pretty familiar with the conditions etc..., just not the legal lingo.

Thanks hawaythelads! To be honest, I lost the will to live writing it but wanted to include as much info as possible...

And I agree, surely at some time, somethings got to give... they were only married for 7 years, surely he should not have to pay for this heinous mistake forever and never be allowed to move on!!?

  • Fiona
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  • Platinum Member
01 Aug 12 #346609 by Fiona
Reply from Fiona
A s28 bars an extension to the term SM is paid. If there is no bar it is open to either party to apply for a variation to change the amount or the term if circumstances change. The courts will then look at both parties'' finances afresh and give regard to the to s25 Matrimonial Causes Act 1973 checklist of factors.

Co-habitants have no rights to claim against each other so the ex-wife can''t make claims against her new partner if the relationship is found to have broken down. Your partner''s obligations to you and your children are a consideration, but children of the first family are the priority.

Legal fees involved in contested variations aren''t insignificant and there is no certainty of the outcome. Apparently there are local differences in way courts view SM. Therefore it makes sense to consult a lawyer with knowledge of the law and experience working with the local courts to find out where your partner stands and to try and negotiate an agreement.

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