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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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Complicated Situation - Please Help!

  • sm_786_786
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01 Aug 12 #346604 by sm_786_786
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Dear all,

I have been a silent browser on this forum for a while and I have found this forum to be very informative. Hence I am going to explain my situation as it seems to be very different and I am hoping someone on here can guide me on what to do next. I am sorry about the long post but my situation is getting trickier.

By the way I am a british national, born and bred in the UK, currently I am working abroad in middle east and living with my current wife and child (2nd marriage).

My first Marriage:
I got married in pakistan in 2002, she came to UK on spouse visa, now she has indefinate leave to remain (permanent residency) in UK to date, however still a pakistani passport holder (not british). We had 2 kids, the ages are boy-8yrs and girl-6yrs (both British).

During the marriage I bought a house purely under my name and a mortgage in 2003.

The marriage was not working out so we decided to divorce in March 2008, since we got married abroad in pakistan, we decided to obtain a divorce from pakistan using their local procedure through the union council. The divorce was granted and it has been attested by a UK solicitor as being valid in UK because it meets family law act 1986 part II, section 46.

A few months after the pakistani Divorce, I was offered a job in the middle east, I took the chance because this gave me an opportunity to start a new life abroad and to return to UK every 2 months to see the kids.

In order to make sure the kids led a normal life as much as possible, I suggested to ex-wife that she stays in the house and I will continue to pay all bills and keep them under my name, so this includes Mortgage, Elec, Water, Gas, Council Tax bills, I also pay for kids school trips online and school meals as well other kids expenses when I come back to UK roughly every 2 months.

While in UAE, I met my current wife, we got married in December 2008, I am still living in UAE with her to date and we have a baby daughter who just turned one years old.

In May 2012 (3 months ago) my ex-wife said to me that she wanted to go on holiday to pakistan, so she asked me to come back to UK for a month and look after the kids, I agreed, I took time off work and came back to UK in May to look after kids and off she went on holiday to pakistan. When she returned she had announced that she is pregnant and that she met a guy there and got married to him in pakistan court. Her husband still in pakistan and I think he needs to obtain entry clearance to enter UK.

Now the problem starts here: She is now some one else''s wife and yet still living in my house and I am still paying all bills. We didn''t do a financial settlement after the Divorce.

My contract is coming to an end and I would like to return to the UK with my current wife and child but unable to do so because she is still living in my house.

Can I evict her, I don''t want to evict my 2 kids with her as I want them to live with me, my current wife and child. Also, since she is now someone else''s wife, its her husband responsibility to support her yet I am doing all that.

Does she still have a claim on my house now that she has remarried, I check my Land Registry record and there is no home rights Notice on there. No that she has remarried, can she still apply for a home rights notice against the house ?

Its getting to the stage where I can no longer afford to pay "her" bills and I have been told I shouldn''t be now that she has remarried as it''s now her husband responsibility to support her (and he is not paying towards anything whilst abroad), also I have been told that she has no claim on the house and that I should evict her. Is that true? What should I do now? Any advice would be greatly appreciated.

SM

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04 Aug 12 #347249 by LittleMrMike
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I think what you have been told is very likely to be correct.

Your ex wife''s rights to stay in the marital home end on divorce ( section 30 (8) (a) Family Law Act 1996 ) unless she made a claim to have those rights extended by section 33 (1) of the same Act. I assume she probably hasn''t.

Looking at section 33 (1) she can''t be entitled to occupy the house by virtue of a beneficial interest but you will note the words '' or contract ''.

Your ex''s residence is not illegal ( ie she is not a trespasser in the house because her initial entry was lawful ) so she is going to be a licensee of some sort and you will, in my opinion, have to terminate that licence as a first step.

Another difficulty your ex has is that she has re-married and therefore it is likely that her claim to financial relief will be barred under section 28(3) of the Matrimonial Causes Act 1973.

But it''s all very well talking about evicting your ex, the obvious question is, what do you do about your kids ?

The one arrow left in your wife''s quiver is section 15 and section 1 of the Children Act 1989. The Court has a number of powers under that section to provide a home for the children.

You will note that I am a retired housing solicitor but, being retired, what I am saying may not be up to date and I can''t help you beyond this anyway.

You need advice and from a practising lawyer with up to date experience in this area of law.

LMM

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05 Aug 12 #347388 by sm_786_786
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HI LittleMrMike,

Thank you for your kind response.

Ex wife saying she now gonna take me to court (I don''t know what for as I am still paying all the mortgage and bills. Maybe over the share of the house as there is no home rights notice on it, since she is no longer my spouse my solicitor tells me she can no longer put a matriomonal home rights notice on it.

So I suppose she taking me to court for CSA payments, no matter how much I try and tell her that I can pay her child support direct (after stopping bills) she doesnt listen and is pressing ahead.

I paid a london ­base­d solicitor nearly 500 Pounds for 2 hours work and he advised that because she has remarried, she has lost her rights to financial claims over me, he has advised me to go to a solicitor specialising in possession orders because it is no longer a matrimonial case but a civil case now. This is what a london ­based divorce solicitor tells me whom I paid 500 pounds to, I also got an opinion of another solicitor and she said the same.

Ex-wife is now seeing a solicitor so I''ve no idea what the ex-wife defence team will do, but her new husband (even though he''s still abroad and cannot legally enter UK) he seems to be influencing her.


My divorce solicitor has suggested the following:

Find a one-bedroomed place for rent, pay the whole year''s rent in one go.

Tell the ex-wife that there is a place for her to move into, all rent paid. If she refuses then start the eviction process using a civil law solicitor ''evict'' her into the rented accommodation.

Or if she leaves the property (like goes on holiday or something) can I change the locks of the FMH and force her into the rented place?

The fact is that I need the house back as I want to sell it and give her half of the equity even though there is no financial settlement and she has remarried abroad (using foreign divorce certificate), so she is not my responsibility (kids are) therefore I am willing to pay whole year''s rent for a flat for her to move into while I renovate the FMH, put it on the market and once sold, she will get half of the equity.

Surely I am being fair here aren''t I ?

SM

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05 Aug 12 #347390 by Fiona
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Normally the courts would have no jurisdiction to make an order for child maintenance if the non resident parent lives in the UK so I doubt your ex-wife will be going to court over that.

As I understand your ex-wife has remarried and can''t make claims under the Matrimonial Causes Act 1973 and therefore you have been advised to force a sale under property law. The problem with that plan is your ex-wife is the parent with the majority of care and a one bedroomed place won''t house the children. She could make a claim under Schedule 1 Children Act 1989 on the behalf of the children for housing to be be provided for them and your ex as their main carer until they reach maturity. That is what I expect your ex means when she says she is going to take you to court.

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05 Aug 12 #347397 by sm_786_786
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Hi Fiona,

Did you mean to say that courts have no jurisdiction to make an order for child maintenance if the non resident parent (me) lives OUTSIDE of the UK? (I live and work in the Middle East with my wife and child).

The other reason she make go and see a solicitor is maybe start the Divorce process under UK law? I don''t know. So far she has used the pakistani divorce obtained in 2008 to re-marry in pakistan, so I doubt she can start ''another'' uk divorce process in UK unless she lied to her solicitor saying she never got a divorce from me in the first place!

So basically I am a bit stumped as to what she may be seeing a solicitor for, you may be right about the children act, but then she been saying to me that she no longer wishes to live in the FMH (memories I suppose) and that she wants to move out ASAP. Thats got me stumped even more now... or maybe she playing tricks on me and really intends to stayin FMH but just tricking me.

Now you can see the mess I am in!

All I want to do is move her somewhere rented, sell the house, and still give her half equity (even though she lost her rights thru re-marrying).

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05 Aug 12 #347419 by LittleMrMike
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Yes, it is tricky, but let me make a few general observations.
It is possible that your ex could still make financial claims against you arising out of the divorce, IF she had made those claims BEFORE the divorce became final. If for argument''s sake she had done that, then the claims can still be dealt with , although the fact of re-marriage would itself compromise her position in relation to any claim.
My guess is that it is unlikely that this will apply to you, but rather than spend a lot of money, I''d be inclined just to sit back and let the other side take the point if they want to, in which case they will have to produce their evidence, and then, and only then, do you need to consider it.
In any event, even if her claims are not barred, the fact of re-marriage would have profound consequences for the way the Court dealt with those claims. Basically she should be looking to her new husband for support, not you.
So why might your wife be going to a solicitor ? Well, it''s not an unnatural or unreasonable thing to do to find out what your rights and duties are following the breakdown of a relationship.
There may be a number of reasons :
1. It''s possible that the CMEC ( CSA ) would have no jurisdiction to deal with child maintenance, but the English Courts might have. So here is one obvious reason for going to Court.
2. It''s possible she will want to know whether she can make any claims following the divorce. The chances are that she will not have, but, for reasons I have given, it is not 100 per cent certain.
3. She may also want to know if she has any claims under general property law.
4. If the house is in your sole name, the likelihood is that you will be regarded as the sole legal and beneficial owner, and although again this is not 100% guaranteed, she would have a job in proving otherwise and again I''d recommend that you proceed on this assumption and put the onus of proving otherwise on her. She will in all probability fail.
5. As Fiona has said, it is possible that your wife may be advised to use the Children Act 1989, and I''d be surprised if your solicitors have not advised you of this possibility. But my inclination is to think that the fact that she has re-married will compromise her position to some extent, but it could not bar her from at least claiming.
6. Wearing my housing lawyer hat, I think I might advise your wife that she might, just possibly, sit tight and wait for you to evict her. Then she applies to the local authority as homeless. She will have a priority need ( because she has dependent children ) could not be regarded as being homeless intentionally, would have a local connection ; in short, a perfect case for being re-housed by the local authority. However, I don''t normally advise people to use homelessness law save as a last resort. You don''t know what property you will be offered and you might well not like it. But if you reject it you run the risk that a Court might hold the offer was appropriate and then you''re on the street.
7. I don''t like the idea of renting a one bedroomed flat ! Partly for the reasons Fiona has given and partly because she doesn''t have to take it and in any event it''s going to be something like a can of sardines. Ok you might be able to find a tenant, but if they trash the property you might be responsible for it and as an ex housing lawyer I would advise extreme caution, which is legalese for telling you not to touch it.
8. What about the new husband ????? Can''t he afford to house his wife and step children, for pete''s sake ?
LMM

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05 Aug 12 #347428 by sm_786_786
Reply from sm_786_786
Hi LMM,

Many thanks for your advise. You''ve put me at ease.

Believe it or not, her new husband is a business owner in Saudi Arabia and earning loads of $$$ but he cannot support his wife and I am sure he is duping her to @get what you can from the ex husband''. Before she married this idiot she was co-operative and wasn''t causing many problems, ever since she married this idiot she decides to stop talking to me and doing things her way via her solicitor.

There was no financial settlement made before the divorce was final, a foreign divorce (islamic) is final within 90 days of application to the union council in pakistan, and since she is a national of pakistan resident in UK then (as I have been told) the divorce is also valid in UK as it meets the criteria set out in family law act part 46 Section II (i.e a foreign divorc obtained by proceedings).

During our marriage she never contributed one penny towards the house and bills, it was me who did all the spending, as I was working 7 days a week for 10 years! Now I believe I have been rewarded with a well paid job in the UAE last 4 years but contract coming to an end and I will be jobless soon, thats why I will be struggling to maintain her and my own wife and daughter. As you say, her husband should be supporting and housing her, not me.

My divorce solicitor had already written her an eviction letter on 21st June, we gave her 2 months till 17th Aug to evict, she took the letter to the council and i believe that the council advised her that she has share in house and that she should persue her share in house as well as the CSA part, they gave her a solicitor number and now she is consulting the solicitor.

Sometimes I think I should not have written the eviction letter then she would have not been given the solicitor number but then again she has remarried and is a responibility of her husband, who should house her and give her expenses as she is expecting his baby yet a businessman not contributing at all and she running to me, a great start to her new marriage eh?!?!

Anyway the council plan is out as they can''t help and gave her the solicitor details, so as you say I will wait and see... but still my time is running out, when my contract ends, I will have 30 days to leave the UAE with my wife (for whom will need a UK spouse visa as well, my daughter is british by descent through me), I have a house in UK purely under my name and so are the bills and yet I cannot enter or live in it cos ex-wife who has re-married is living in it for free, I am even willing to have my kids with her living with me and my current wife is readily willing to accept them as they get on well with my daughter here.

Thanks again for your help, I will wait and see what they say rather than spend pounds.

SM

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