The Matrimonial Home

Just about to set out on the big divorce adventure. Briefly OH has decided he loves me but can no longer live with me so has sent me a solicitors letter indicating that he is shortly going to issue divorce proceedings.

My query to you all is, I have paid the Mortgage, bills etc on the matrimonial home for many, many years and wonder if this will be reflected in the proportion I will get under any financial settlement. My OH says no it must be 50/50 which grieves me as he has not given me a penny towards any payments I have made. He is self employed and basically works when he wants to, I had to return to work cos if I hadnt we would have been re-possessed as there wasnt enough money coming in to keep us going. I have worked my way up and now have quite a reasonably well paid job to make life easier, or so I thought, OH has just taken advantage of it.

I have appt with my solicitor on Wed but any advice would be appreciated.

Hello and welcome to the site can you give a few more details such as
do you have children if so who will they live with
did you buy the house together
lengh or marrige
pension H&W
Value of FMH
outstanding morgage
your wage and his
when we have these you will get lots of help with this queation and any others you may have cheers
dukey

Hi there,
Yes, children but aged 21 and 20 both still living at FMH
House bought jointly
Length of marriage - 25.5 years
H - no pension self employed and lived off me
W - very small pension
House value - for quick sale approx £155K
No mortgage outstanding but loan of £15k secured on house, all repayments made by me
His wage - his pocket money £5k business profit
My wage circa £18K

He has basically sponged off me for most of our married life. I stayed with him to try and give my children a secure homelife, in hindsight I should have got rid of him many years ago. He now wants money and the only way he can get his hands on it is by divorcing me and reaping the benefits of a house that I paid for and continue to pay for bills, loan etc.
He also says he cannot move out as he cannot afford to rent a property and that if I continue to ask him to move, he will and then ask me to pay his rent. He also says that until a cheque appears in his hands/bank account for his share of the FMH he will remain in the house even if we are divorced. Can he do this? I am also being subjected to a lot of unpleasant harassment by him, I feel very frightened and vulnerable.
Please could someone advise. I so want him to move out so that I can get on with my life. He will apparently be eligible for Legal Aid and has an appt to see his solicitor on Thursday to fill the forms in. Would it be OK when I see my solicitor on Wed to ask her to issue the divorce petition even though I have received notification from his solicitors that divorce proceedings will "shortly be issued" - I am at my wits end.

Observations on your post:-

I stayed with him to try and give my children a secure home life, in hindsight I should have got rid of him many years ago.

[YES!!]

He now wants money and the only way he can get his hands on it is by divorcing me and reaping the benefits of a house that I paid for and continue to pay for bills, loan etc. [NO HIDING IT THE KEY IS HOW MUCH YOU CAN RAISE & PAY]

He also says he cannot move out as he cannot afford to rent a property and that if I continue to ask him to move, he will and then ask me to pay his rent.

[H WILL NOT GET MAINTENANCE]

He also says that until a cheque appears in his hands/bank account for his share of the FMH he will remain in the house even if we are divorced.

[DJ WONT ALLOW D/A UNTIL H LEAVES! ]

Can he do this? [YES BUT IF HE MISSBEHAVES HE RISKS YOU applying for an occupation order under Part IV Family Law Act 1996]

I am also being subjected to a lot of unpleasant harassment by him, I feel very frightened and vulnerable. [If it gets bad apply for an Occupation/Non Molestation order!] or {MAKE COMPLAINT TO POLICE WHO WILL ISSUE WRITTEN WARNING]

Please could someone advise. I so want him to move out so that I can get on with my life.

[STRATEGY; GET ON WITH DIVORCE ASAP
AND IF NECC PRESS ON WITH FINANCIAL CLAIMS]

[Good strategy if to get a remortgage organised as soon as possible and SHOW H THE MONEY…he will crack!!!]

He will apparently be eligible for Legal Aid
[SO WHAT IT’S NOT FREE]

And has an appt to see his solicitor on Thursday to fill the forms in. Would it be OK when I see my solicitor on Wed to ask her to issue the Divorce Petition even though I have received notification from his solicitors that divorce proceedings will "shortly be issued"
[ACTUALLY IF H WANTS TO ISSUE LET HIM YOU ARE SAVING COSTS OF THE DIVORCE!!] [WON’T AFFECT FINANCIAL SETTLEMENT]
WHAT DOES THE LAW SAY?
The relevant principles are set out in Section 25 of the Matrimonial Causes Act 1973:
25 Matters to which court is to have regard in deciding how to exercise its powers under ss. 23, 24 and 24A
(1)It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 , 24A or 24B] above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(2)As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24 24A or 24B]above in relation to a party to the marriage, the court shall in particular have regard to the following matters—
(a)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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
[SO IN YOUR CASE H BEING A LAZY SO & SO IS A FEATURE…..HE MUST BE JOKING IF HE THINKS THE COURT WILL ORDER YOU TO PAY MAINTENANCE…IN PRACTICAL TERMS YOUR INCOME IS TAKEN UP IN ASSISTING CHILDREN AND YOU TO REMAIN IN FMH
H IS EITHER ON FIDDLE & doing foreigners –IF GET TO STACK SHELVES IN STORE HE WILL EARN MORE!!!
(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;
what is cost of a 1 bed flat in your area…..THAT IS THE SOLUTION RAISE ENOUGH SO HE CAN BUY THAT EG IF SAY £70k
H CAN RAISE £5 X 3.5 = £17,500 REST YOU RAISE ON FMH SAY £50-52K
Get a mortgage to include £15K loan
(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;
VERY LONG MARRIAGE..SO ON THE FACE OF IT CONTRIBUTIONS TAKE A LESSER IMPORTANCE SO 50% 50% IS A STATRTING POINT AND THE COURT WILL ONLY DEPART FROM IT TO ACHIEVE FAIRNESS
ONE REASON MIGHT BE H’S HOPELESS CONTRIBUTIONS TO W & C
(e)any physical or mental disability of either of the parties to the marriage;
(f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
YOUR CONTRIBUTIONS IN BRINGING UP C AND KEEPING H
(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
NOT REALLY “CONDUCT” PER SE BUT H FAILURE TO SEEK WORK IS A FEATURE
(h)in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
(3)As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters—
(a)the financial needs of the child;
(b)the income, earning capacity (if any), property and other financial resources of the child;
(c)any physical or mental disability of the child;
(d)the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;
(e)the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.
(4)As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard—
(a)to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
(b)to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
(c)to the liability of any other person to maintain the child.]
Case seems suitable for a Lump Sum on an income and capital Clean Break
with H transferring FMH to you and in return you agreeing to take over the loan. Now subject to you checking with a proposed lender you can raise the £55,000 lump sum and get a mortgage promise certificate the sort of letter your solicitor could put together could be as follows:-
From Sue, Grabbit & Run
Solicitors

Dear Sir,

Our Client: Mrs
Your Client:
OPEN PROPOSALS


We write this letter in the hope the issues between the parties are addressed as soon as possible and at the same time attempts to save valuable Judicial time and the parties legal costs that could be a drain of resources of the family that are clearly modest.

Divorce Proceedings

It is accepted the marriage has broken down and in this case costs could be saved if your client files a Divorce Petition not least as he will be advised under the Legal Help Scheme. Providing the allegations of unreasonable behaviour are agreed in advance and the proceedings conducted with due expedition and no costs claimed we are instructed to accept service.

Financial Proceedings –Ancillary Relief

Your client is fully aware of our client’s modest income (£18,000 gross pa).
Sadly your client despite being urged to do so chooses to work as a self employed [ ] alegedly earning £5,000 p.a.

We trust you will advise your client on his obligations under s 25 MCA 1973
that the Court will consider amongst other things….
(a)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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
Your client could get a better paid job in days if he chooses to do so and therefore our client is at present shouldering an unfair burden of running the FMH and assisting the children of the family still living at home.
We understand our client can raise a mortgage of approximately £55,000 to pay your client a lump sum and so we believe that if your client transfers his interest in the FMH (Worth c £155,000 and mortgage free) to our client subject to the existing secured loan of £15,000 a settlement can be achieved on an income and capital clean break basis with no order as to costs.
This will enable your client to purchase reasonable alternative accommodation with the aid of the lump sum and a mortgage he could or should be able to raise.
This letter is an OPEN LETTER for the purposes of Court proceedings. The proposals are open for acceptance within 28 days and thereafter are deemed withdrawn.
If accepted there must be a consent Minute of Agreement prepared and signed by the parties and their advisors so an order can be made a Rule of Court on pronouncement on the Decree Nisi. Please note money cannot be handed over until the order is made and the order will provide that you will vacate the FMH upon the money being paid to your solicitor whereupon the Decree Absolute will be made.
I am prepared to comply with the pre action ancillary relief protocol and trust your client will in the unlikely event the matter does not settle. I am also prepared to attend mediation but only if the same is arranged within 21 days.
Please explain to your client:
• That Community Legal Funding (Legal Aid) is not free legal costs have to be repaid with interest.
• The Court of Appeal have repeatedly made it clear in cases a FMH will not be sold in cases where the parties reasonable housing needs can be otherwise met.
To evidence our client’s financial position we enclose a P60 and a recent wage slip showing cumulative pay, evidence of the £15,000 loan and a mortgage promise for the lump sum to be raised on the security of the FMH.
Please acknowledge safe receipt,
Yours faithfully,

Attilladahun - WOW I cant thank you enough for all your expert and sound advice. It has really cheered me up (if that is possible) to see what you write. I will certainly take note of your clear and precise advice and will present this to my solicitor tomorrow. The letter is fab, and says exactly what sort of settlement I am looking for. I am meeting with my sister today (she is a Property Developer) to see what sort of Mortgage I can raise. All I know is that I should have done this many years ago but sadly didnt so cant dwell on the past. What is done, is done, I cannot do anything about it, but what I can do is move on and shape my future with my two children who are also my best friends (H doesnt have this privilege, they are both adult and can see what he has done is doing to all of us). H mentioned getting a job, to which daughter replied "If he does that will be the first time in my life (21 years) that I can ever say I have seen dad go out to work". I digress off the point here, but once again thanks you a million times over for your advice.