DIVIDING THE EQUITY IN THE MATRIMONIAL HOME

Background1. Married 29 years; wife left family home to live with friend after 13 years. They lived together for 7 years until friend returned own family. STBX wife’s current status unknown other than she has had several relationships since then.2. One grown-up child (age 25). Mum left him with me when we separated (he was age 11). Initially he resided with each of us in turn until he was age 15 when he became estranged from Mum and has resided permanently with me ever since. Son refuses to communicate with mother (despite my prompting).3. I alone paid the deposit and made all the mortgage payments as well as Council tax and all other household costs including all those related to the care of our son (e.g., childminder, school lunches/uniform/trips etc) – even though wife was employed (good career/salary/pension).4. I have all the mortgage and bank statements that reflect these facts.5. In calculating wife’s contribution to the family home, I calculate her financial contribution as being half of everything I paid of my own accord towards the deposit and mortgage whilst we were a couple. Following her leaving the family home (and NEVER returning), I alone paid all the household costs and have not therefore attributed any contribution to my wife. She made none.6. After my 3 failed attempts to divorce wife, we eventually agreed to a collaborative divorce. However, immediately prior to our final meeting my wife argued with her solicitor and the collaborative process stopped before reaching a financial agreement – albeit Decree Nisi was approved. I wasted a lot of money on legal fees. I immediately reengaged another solicitor. (Ex)wife will not engage another solicitor.7. In discussing how the equity in the family home will be shared, my new solicitor says 50:50 of the net equity realised on sale. I find this surprising given that my former solicitor says 50:50 as a baseline for a long marriage but moderated by the fact that she deserted the family home after less than half the marriage. And thereafter she has never contributed in any way to the property or the home since deserting our son and the home. Consequently, her share would be proportional to her contribution whilst we were a couple - i.e., 25–30% of the net equity on sale. In effect, approximately her 50% of the net equity had the home been sold 16 years ago.8. Apropos our other circumstances:a. I am 26 years older than my (ex)wife; I live on my State Pension and former employer’s pension (earned and in receipt before I met my wife).b. My (ex)wife has a good salary (almost double my pension income), a good pension pot and plenty of working life (more so than myself when we took the mortgage).Question for the Forum?9. Given the background, which of my solicitors’ view on the sharing of the equity in the family home is correct, i.e,a. Equal shares on sale, orb. Equal shares based upon proportion of marriage as a couple when both of us are assumed to have equally contributed as homemaker and home keeper to the family?I realise the actual proportions will be predicated by my (ex)wife and I having somewhere to live and being able to afford to live.

You can’t look at the house in isolation, you need to take into account the whole pot.

She may not have contributed towards the mortgage for years but the counter argument will be that you didn’t pay her rent for her share of the house.

You need to post more details of ages, incomes and assets for someone to comment.

Thank you for your reply. Yes, I was being evasive in leaving out details but I was anxious not to write anything that could identify STBX. Sorry but I do not want to throw mud but there are numerous relevant s25 factor in play including, in broad terms, a large age disparity (I'm a pensioner; she's mid-life); she's earned well for the past 24 years (and has a good pension pot) but I've paid for everything including our child who has been estranged from her (there are reasons) since early teens but has grown up and remains estranged; STBX lived with someone else since the moment the walked out (actually started a year before she actually packed her bags) etc. And currently she lives in my pre-marriage property (I bought for my mother but she died recently) FOC as a favour from me whilst she looked for somewhere else following her friend deciding to live elsewhere and ceasing their rental. She's still there and I reckon in rent alone at a very nominal rate I have saved STBX £63K in rent alone! I started proceedings (petition and mediation) in 2007 and she walked out of everything including most recently a collaborative process - so I've had to start over yet again with a new solicitor. The point is I'm penniless, now have debts, and need to move out of the MFH. My previous (to current) solicitor thought STBX take out of MFH would be 30% TIC the s25 stuff, but my new solicitor suggests 50:50 - regardless of the fact that STBX has not been near the place since she walked out of the door - nor did she pay a penny to the MFH whilst she was here. So I'm perplexed at the divergence of opinion and wondered if there was a reckoner that would give me a better steer on what to offer that is fair and would avoid court - which I definetely cannot afford and would prefer to fall off my perch on my own accord so our child gets something to make up for things (and for putting up with a grumpy old man). Grumpy because I have avoided other relationships. Anyway thank you for responding.

Hmm. Any settlement will take all of the factors into account but it is nigh on impossible to say that one or other of the solicitors is correct. The usual answer to any settlement question is 'it depends' . There's a lot more flexibility if you can reach your own agreement - although it must still be seen as far. Even where a judge is called on to make a decision, there's a wide spectrum of fairness.
All you can do is make a well reasoned proposal based on full financial disclosure and an assessment of needs. This should encompass all assets including pensions. If there is to be a departure from 50:50 you need a good reason for it. The disparity in ages and earning/mortgage capacity would be one.
If needs can be met from available equity and there's capital left over, the question of contributions could be considered but where mortgage etc has been paid, this could be seen as 'rent' for her half of the property. NB The property in which she is living could be seen as matrimonial. Even if it is not, it is an asset you could use to help meet your housing needs.
If she does not accept an offer that you have been advised is fair ( and based on full disclosure) you may need to offer mediation followed by an application to court if that is not fruitful. If funds are tight you could consider self representation perhaps with ad hoc legal advice?

Hadenoughnow

Thank you. I replied yesterday but my reply seems to have disappeared. Yes, my solicitor says my needs, the age disparity and my limited income v her good earning future and current (never mind future) pension pot are good reasons for diverging from the 50:50 share. My perspective is that if STBX has not supported the family home ever, but especially since she walked out, I find it illogical that she should benefit from the growth in equity since then. My assessment is that her share should be founded upon the period we were a couple (even though she never paid a penny anyway) and if we had sold the home when we separated we'd have got even shares. It is unfair - even inequitable - to share evenly so many years after she walked out. Especially as she left to live with someone else and to have "fun" without being burdened with a child. And yes, there is enough in the pot to be sure we have somewhere to live (me in my 2-bed bungalow so I don't fall down the stairs; STBX with a large deposit for a mortgage she can easily afford) and for us to live (me on my pensions; STBX with a large chunk of capital and a good salary well in excess of my pensions). Above all, my offer must be something a court would agree is within the reasonable range because I would not want it to be otherwise. So, my solicitor is seeking a barrister's Opinion based on my very comprehensive form E (evidenced fully including the mortgage and bank statements going back to us starting out as a couple). Sadly hers is a flimsy financial disclosure it took her 7 months to prepare, which I understand was the reason STBX and her solicitor fell out and the collaborative divorce process crashed. We have tried mediation (jointly agreed) but the mediator pulled out as STBX would not attend after her initial session and would not disclose; the collaboration with solicitors failed;and recently she didn't even reply when my solicitor offered a mutual disclosure using Form Es. So the offer will be based on goodwill and barrister assumed estimates using her original disclosure. As you said, I've had enough and all I want is to clear up my mess before I fall off the perch because I am in the bracket. But I also want to protect our son who deserved better than his mum and (old) me. I hoped for a benckmark other than 50:50 maybe and I so wish the law was printed in black and white rather than a weak shade of grey. Thank you however for you time and effort. I may be back if I self-represent but I hope to find a reasonable proposal that suits us both.