I have 3 children and still living with soon to be ex (SBX) in marital home (his name is on mortgage). Married 15 years. I am at final hearing and received an out of court settlement.
I am inclined to accept the offer, given the unprecedented times with pandemic. The offer comes with a ‘clean break’ and condition that I buy in a location close to FMH (which he keeps!.
1. I can not afford this particular area. I need to sell an investment property, so I’m in a chain - my mortgage capacity is tiny.
2. I’ve considered renting locally but can not find a landlord who will accept an advance payment of a year and/or a guarantor.
3. I’ve been advised not to go to final hearing as SBX will claim legal costs and based on statement of assets I will not get anywhere as much as this current (without prejudice) offer. Plus the hearing could set me back £20k in legal fees.
4. I CAN afford to buy out of area on this offer and ‘chain free’ but I’m told if I move then he may withdraw the offer or give me less.
So many considerations. He is coercive and controlling. He is keeping FMH and is going for a lives with order (shared parenting).
In short the situation, the simple solution is to accept the offer, rent and work out a long-term plan later. What if I can’t find somewhere to live in the short term? Surely in a childrens act case, the children will live with their dad in the FMH.
You say that you have been advised that he will claim his costs and you make reference to a without prejudice offer. From whom did you receive this advice?
In family proceedings costs orders are rare and the existence of without prejudice offers cannot be divulged at a final hearing. The only way a party is likely to get costs is when the other party refuses an OPEN offer which they later beat at final hearing.
My solicitor has confirmed that the judge will not see the Without Prejudice Offer. Once the ruling is made the respondent can then state that his offer (a larger amount) was made and that I refused, therefore they would likely claim their legal costs. It is anticipated that the judge will rule a lesser amount because on paper the schedule of assets show a specific amount in the pot. We don’t know where the extra cash amount, he has offered has come from?
If I accept the offer now and can not rent or meet the asking price of a suitable property, surely it leaves me at a disadvantage with the pending Children Act case?
A without prejudice offer cannot be considered by the trial judge. The Family Procedure Rules state that only open offers can be considered when making costs orders:
(5) Subject to paragraph (6), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party.
(6) The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them).
(7) In deciding what order (if any) to make under paragraph (6), the court must have regard to –
(a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;