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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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The Marital Home

  • Sera
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13 Jan 09 #78446 by Sera
Topic started by Sera
The marital home.

Since most new wiki users have immediate enquiries about the marital home: their rights to stay put, or the rights to throw their spouse out! - I’ve put together this post which avoids legalese and gives you a brief summary to help you sleep whilst the roof is still over your head!

After the initial shock of the Divorce announcement; the biggest worry we face is an uncertain financial future; how assets will be divided and what happens to the matrimonial home. Abbreviated on the forum to MH and FMH (Former Matrimonial Home)

To most of us the MH is the single biggest asset. Moving is stressful at the best of times, in divorce the stresses become magnified and our fears, anxieties and distress can affect our emotional well-being, our coping strategies and our health. It can also cause anxieties to children. Hopefully the following may help to allay a few immediate anxieties:

matrimonial home Rights.

It is a common misconception that if only one of you has his/her name on the Deed title, or one of you brought the property in to the marriage - that their partner has no rights and no financial right to claim. This is not so, yet many Deed title holders use threats of rights to occupation and ownership and threaten their spouse with that, or threaten them to leave, suggesting it is ‘theirs’ only.

Ignore this ill-informed intimidating behaviour! Stay on wiki and get clued-up for free! The next time he/she screams “It’s MY house!” Tell them you have rights to live there.

If your name is not on the Deed title; you can register your matrimonial home Rightsthrough the Land Registry. Registering your interest prevents your ex selling the property; transferring ownership; or remortgaging. Until the financial settlement is resolved.

Registering MHR is a fairly common procedure.

In short term marriage; unless children were born it is unlikely that you would have a financial claim against a home brought in to the marriage by your partner. If you made financial contribution, or contribution in kind (refurbishment etc) your contribution would be considered, and you may get a small Lump Sum settlement to allow you to rent elsewhere, or put down a deposit. You do have the same rights to apply MHR regardless of the length of marriage.

The considerations of the Courts. (A very brief overview!)

There are a number of considerations Judges Use; and for those wanting the full legal jargon, read up on Section 25 of the Matrimonial Causes Act 1973.

The courts will consider the housing needs of both parties, but gives priority to any children still in full-time education and their parent-with-care (abbreviated on the forum to PWC)
The courts also have the right to redistribute matrimonial property to address those needs; regardless of whose name is on the Deeds, who put down the deposit, or who pays the mortgage.

Your spouse cannot order you to leave the MH. If this is necessary (instances of violence etc) then there are proceedings which can decide who stays. If you are ordered to leave the home (or if you move out voluntarily) it should not affect your rights to a financial consideration.

How the MH will be split:

Our wiki Divorce Lawyer asks for a complete picture to see how assets can be juggled around to meet the needs of both parties - giving priority to the children and their parent with care. It is not simply an automatic assumption that you own the MH 50%-50%. The value is considered as part of the marital ‘pot’; and the redistribution of that ‘pot’ may affect the percentage of ownership of the MH either party retains.

IF there are other assets (Savings, Pensions, Shares etc) that can be off-set; it may be that one party retains a larger percentage of the MH in exchange for no future Pension claim. (i.e. A mother with three kids might retain the MH, which she could sell after the kids have left, then downsize assuring herself a Pension later in life).

See the link to the Financial Section to read more about Ancillary Relief questions:

The usual options regarding the house are:

(i) sell and divide the proceeds
(ii) the house is transferred to you or your ex.
(iii) one party buys the other out.
(iv) The pwc gets the right to live there while the children are still dependent, (There are Mesher Orders which allow the non resident parent to retain a percentage of the home, which could be sold at an agreed later date, usually when the children finish full-time education)

A court can Order a sale; (although this is often agreed mutually if the house exceeds the needs of either party)
But because you are divorcing does not mean that your ex can demand you immediately put it on the market! What is done with the MH becomes a topic of discussion during mediation. Although an immediate thought might be to downsize: (i.e. from a three-bed house to a two bed house) by the time the legal costs, moving costs, estate agents commission fees, surveyors fees, new mortgage fees etc are factored in, this is not always a cost-effective option.

Occupation Order proceedings:

If sharing the home becomes intolerable; either party may apply for Occupation Order proceedings. This would allow a judge to consider the behaviour of your spouse and decide if they are to be ordered to leave the MH. These proceedings are often used in cases where there is domestic violence; or circumstances so appalling that a spouse needs the protection of the courts (Non-molestation Orders are often tagged on). The courts will address the issue of housing needs of both parties, but usually give priority to the children and the parent-with-care.

Hope this post helps! There is a lot of free information on the forum and in the wiki library. Much of this information will save you £hundreds, because it's the nuts-and-bolts basics that most divorcing people address with their solicitors.

Sera :)
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  • cheery
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13 Jan 09 #78448 by cheery
Reply from cheery

Great post, answers alot of the most commonly asked questions.
I found it very helpful.

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  • constanza
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13 Jan 09 #78450 by constanza
Reply from constanza

There is the question of what happens if one side gets a % of equity to be realised at later date- say, when youngest child leaves education.
DL says if property is in negative equity at that point, ex gets nothing, because there is nothing to share.
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  • Sera
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13 Jan 09 #78452 by Sera
Reply from Sera
It would be helpful if someone could write about what happens when the house goes in to Negative Equity, what happens if ex leaves and refuses to pay mortgage, What happens if one party is burdened with the mortgage during seperation, (and the bit about one party 'renting' from the other)

I don't have the answers to those questions, but we're hoping to make these casual informative posts in to fixed posts so that we're not all answering the same questions all day.

It would also be helpful if anyone can advise about Repossessions and what to do if you can't agree form E valuations.
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  • Zara2009
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13 Jan 09 #78454 by Zara2009
Reply from Zara2009
Hi Sera
I might be able to shed some light on this, if you want to edit it please feel free or add anything that you think might apply.

ex leaves house and refused to pay mortgage/cannot pay mortgage

Basically as far as the mortgage company is concerned, they have no interest whatsoever in what is going on regarding divorce proceedings. If both sign the mortgage document then they will look to either of you for payment if one defaults. If both default then repossession proceedings will begin.

As far as the percentage split/settlement is concerned, until a court order is present and in force, no recognition whatsoever is made for the fact that one party might have paid thousand of pounds over a period of years (entire installments) as they had remained at the property, whilst the other party lives somewhere else. It is only when it goes to court a decision will be made as to either a refund of half of the mortgage payments,(as from the date of the court order, not date of separation) or any other arrangement that the judge might think fit. Effectively you could walk out of your property, rent somewhere else, or stay with a friend for years and not pay a single penny.

When the time comes for the sale of the FMH both parties should get their settlement as per court oder.
There does not seem to be any provisions made for the fact that you have already subsidised the other party's equity by thousands
of pounds over a period of years.

Even then, with a court order in place it does not mean that the other party will comply immediately with either the agreed sale of the FMH or even stick to the agreed percentage split.

The sale and the settlement can be drawn out for another few years if one party decides not to comply or tries to vary the order via their solicitor, or just ignores it altogether. In this case you MUST take it straight back to court to get this enforced.

So. No recognition at all is given by the courts for having paid all the mortgage for any lenghth of time, before the court order.

Hope this is ok Sera.

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  • lovelife
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13 Jan 09 #78465 by lovelife
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Of course you could end up paying both rent on a place to stay AND the mortgage on the FMH if your stbx tries hard enough to make your life miserable. Like mine.
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  • Sera
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13 Jan 09 #78474 by Sera
Reply from Sera
...which is why I mentioned the bit about 'Occupational Rent'. (Something to do with her owing you, if you leave and continue to pay mortgage)

Not sure how or when that applies?
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