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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.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


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Our consultant service offers expert advice and support to help you reach agreement on a fair financial settlement quickly, and for less than a quarter of the cost of using a traditional high street solicitor.


Deposit on house

  • moomoo1
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25 Mar 08 #17654 by moomoo1
Topic started by moomoo1
Hi

Can anyone tell me, my husband and I have been married for 5 years. When we bought our first house I put £50K on the house. Since then he pays the deposit and I pay everything else. I have nothing in writing other than the audit trail from where the money came from. If we divorce do I walk away with that before the profit of the property is split???

Thanks

  • downbutnotout
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30 Mar 08 #18021 by downbutnotout
Reply from downbutnotout
moomoo,

There are many factors that come into play in determining the way the house equity is divided.
- Marriage length
- Your and his ongoing needs
- Needs of any kids
- Your respective income levels
- Pensions

In most cases 'needs' is a far more important factor than who put in how much deposit at the start or who paid the bills.

So no - you do not get your 50k back before the rest is split...it doesnt work like that.

  • attilladahun
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30 Mar 08 #18027 by attilladahun
Reply from attilladahun
Either party has the power to apply to the court if they
feel that they have not received an adequate share of
the matrimonial assets or if they require maintenance
for the future. Section 25(2) Matrimonial Causes Act
1973 lists a number of factors that the court must
consider regarding the settlement of financial matters.

One of these factors is the duration of the marriage.
In the past short marriages have tended to arise when
either elderly or young partners marry. However this is
certainly not always the case and the number of short
marriages in England and Wales is on the rise for all
ages. Such cases have raised many issues in the way
the Court distributes the matrimonial assets, especially
in those cases that involve significant wealth.

Before the case of White v White [2001], the way of
dealing with these cases was condemned as unfair and
discriminatory. Heard in the House of Lords, the White
case was an important decision in relation to ancillary
relief proceedings. It emphasised that the overlying
objective of the proceedings is to achieve a fair outcome
and that an equal division of assets should only be
departed from if the reason to do so is justified.

In the case of Foster v Foster [2003], the court
considered the proper approach when assessing
contributions to a short childless marriage.
The Court, having taken into account all the Section 25
factors, decided that the parties should be returned to
the position that they were in before the marriage, and
any profits made during the marriage be distributed
equally.

The very recent case of Miller v Miller [2005] may now
cause many individuals to think twice before marrying.
This is due to the fact that Mrs Miller was awarded £4.5
million net despite the fact that the marriage lasted less
than 3 years and spawned no children. Mr Miller’s fortune
was estimated at £30 million so his former wife had, in
effect, walked away with a sixth of his fortune, which
converts into her being paid a lifetime income of £98,000
per year. This was the case despite the fact that Mrs
Miller had been a successful career woman earning
£85,000 a year; a career that still had time to blossom
given her modest age of 35. Mrs Miller also made little to
no financial contribution to the marriage during its short
time span.

Despite the decision in Miller, it does appear that each
case must still be judged on its individual merits following
the section 25 criteria in order to achieve a fair result
that avoids discrimination. The problem is that there is
currently no precedent as to what is fair in marriages
where earning power has been generated before the
marriage or where the marriage is short.

The trial judge in the Miller case stated that, by marrying
her, Mr Miller had given his wife legitimate expectations
that she would be living on a higher plane and it was,
therefore, the duty of the Court to maintain that standard
for the rest of her life.

However, arguments can be raised
that, in this day and age, marriage is no longer a lifetime
commitment. Mr Miller appealed the decision to the
House of Lords.

Section 25 Matrimonial Causes Act 1973:-

In fact, 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;
(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;
(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 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;
(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;
(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.]

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