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who gets the house

  • Mumsie
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06 Mar 08 #16065 by Mumsie
Topic started by Mumsie
i have been married before and remarried in 2006. my husband cam to live in my house. i have paid the mortgage since 1988 and has paid half since 2004.

if we separate, will he be able to claim half of teh value of the house from me? he has a number of ISA accounts and a substantial amount of money that he made when he sold his house upon meeting me. i am concerned that he may transfer all his savings into his fathers name to hide them so that he has both his money and half of the house.


  • attilladahun
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07 Mar 08 #16071 by attilladahun
Reply from attilladahun
Your query is in essence how much is a short-lived marriage worth?
Mr Miller’s solicitors thought they knew. He was 39 years old and his wife 34 when he left her for someone else, less than three years after they married. He offered his wife £1.3 million – after all; he was an exceptionally wealthy fund manager with assets of more than £30 million.

Mr Justice Singer thought this less than fair and awarded Mrs Miller £5 million. In July, the Court of Appeal dismissed Mr Miller’s appeal (Miller v Miller [2005] EWCA Civ 984, [2005] 2 FCR 713, [2005] All ER (D) 467 (Jul)). The decision will encourage rich fiancés to use pre-nuptual agreements.

The answer to the question, at least where the parties are young and there are no children, used to be simple. In H v H (Financial Provision: Short Marriage [1981] 2 FLR 392, Lord Justice Balcombe said: ‘[With] short marriage(s) between two young persons, neither of whom had been adversely affected financially by the consequences of the marriage and [where] each… is fully capable of earning his or her own living, the approach which the court should normally adopt is to allow for a short period of periodical payments to allow the party… in the weaker financial position… to adjust herself to the situation and thereafter to achieve the wholly desirable result of a Clean Break.’ Mrs Attar (Attar v Attar (No 2) [1985] FLR 653), for example, received only the equivalent of two years’ lost earnings from her wealthy husband.

In Miller, the Court of Appeal gave two reasons why such an approach is no longer appropriate. First, it had originated when the yardstick for measuring the extent of a claim was the applicant’s reasonable requirements and could not survive the decision of the House of Lords in White v White [2000] 3 WLR 1571. Second, in the words of Lord Justice Thorpe, ‘marriage is not to be equated to a purely financial venture where the court may redress breach of contract… by an award of damages’. A more sophisticated evaluation of the extent of the wife’s commitment to and investment in the marriage emotionally and psychologically is required. ‘What a party has given to the marriage and lost [by the separation] cannot be measured by simply counting the days of its duration.’

What advice can now be given? The Court of Appeal repeated what had been said in Foster [2003] EWCA Civ 565, [2003] 2 FLR 299 to the effect that the section 25 criteria (Matrimonial Causes Act 1973) have to be applied to all the circumstances of the case to achieve a fair result that avoids discrimination. The length of the marriage is only one circumstance. Pre-marriage cohabitation can be taken into account as part of all the circumstances whether or not it is also reflected in the contribution or conduct factors.

As Mr Justice Coleridge commented in CO v CO (Ancillary relief: pre-marriage cohabitation) [2004] EWHC 287 (Fam), [2004] 1 FLR 1095: ‘Committed, settled relationships which often endure for years in the context of cohabitation (often, but not always with children) outside marriage, must, I think, be regarded as every bit as valid as those where the parties have made the same degree of commitment but recorded it publicly… by marrying.’ The Millers had not cohabitated but the court held that the fact that Mrs Miller had committed herself to her future husband for four years, even before they became engaged, was a matter that could properly be considered.

A short marriage will not diminish the importance of contributions on the facts of a particular case. Where a surplus has been generated by joint efforts, it does not matter whether it had taken a short or long time to do so (Foster). In many cases, there will be children and, where the marriage is a short one, the period of future contributions towards the family’s welfare will be conversely lengthy (B v B (Mesher Order) [2002] EWHC 3106 (Fam), [2003] 2 FLR 285). In Miller, the considerable financial contribution came from Mr Miller but his wife changed her employment, moved to London, worked to ensure a primary home and a holiday home ‘fit for his status’, and tried to have a child.

The needs of the parties may be important. Mrs B needed a home for herself and the couple’s two-year-old son which was secure until he attained his independence. For many years, even if able to return to work, she would be unlikely to obtain a job that would generate the income and pension she could have been expected to earn if she had not had a child. However, it may be difficult to fix the standard by which the needs are quantified.

Prior to her marriage, Mrs Miller was earning about £85,000 annually and lived in a rented flat. Did she ‘need’ a house worth £2.3 million and a lump sum that would provide for life an annual net income of £98,000? In one sense, no, but Mr Justice Singer and the appeal court held that she had ‘a legitimate entitlement to a long-term future on a higher plane of affluence than she had enjoyed prior to marriage’.

Lord Justice Wall took pains to emphasise that the result in Miller was fact-dependent, but one feature of the case may make it difficult to predict the outcome in future cases &150; the weight to be given to conduct.

Since Wachtel [1973] Fam 72, courts have been reluctant to investigate allegations of misconduct unless ‘obvious and gross’ or otherwise relevant to the case. Lord Denning commented: ‘Short of cases falling into this category, the court should not reduce its order… merely because of what was formerly regarded as guilt or blame.’

Perhaps the important word is ‘merely’. Even though, in directions given after a failed financial dispute resolution appointment, Mrs Miller had declared that she would not rely on section 25(2)(g) (conduct), the appeal court held that the trial judge was entitled to conclude that Mr Miller was to blame for the breakdown of the marriage. ‘That finding,’ said Lord Justice Thorpe, ‘entitled him to give much less weight to the duration of the marriage than he would have done had he found that the wife was to blame… or the parties had separated consensually each acknowledging unexpected incompatibility.’

Ancillary relief proceedings are quasi-inquisitorial and the judge is never confined by what the parties have elected to put in, or exclude from, evidence.

The main lesson, then, may be that errant, wealthy spouses should err on the side of generosity.


If you have evidence that H has or is about to transfer assets to 3rd parties then one divorce proceedings are issued an injunction could be applied for either under the courts inherent jurisdiction or under s 37 MCA 1973.

The Court is bound to look at a number of factors set out in s 25 MCA 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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