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familylawexpert
familylawexpert, Family Solicitor
Category: Family Law
Satisfied Customers: 311
Experience:  Substantial experience (14yrs +) in divorce, financial cases, cohabitation, pre-nuptial agreements and civil partnerships.
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Divorce - Finances

Customer Question

I got married to my partner in Aug 2012, we were together almost 8 years. We have one son aged 4 and his older son now 14, came to live with us after being together about 2 years. I have never adopted him. His Mum died 0n 4th Jan 2014 and he started acting strange, i put it down to bereavement. on 28th Feb 2014 he came home (he worked away during the week) and said he was leaving me and taking the then 13yr old son as he didnt think it was working! I was so shocked I actually thought he was joking. It didnt make sense so on the 3rd March I found lots of emails from another lady and it turns out he was having an affair. Throughout the sepeartaion and divorce proceeding he has threathed to take my 4yr old son from me "because you know I can" and various othe threats - even emailing my Board of Directors at the company I work for. I paid off his credit card in Feb 2014, whilst he was having the affair. So I have asked to pay this back and he refuses. We are now trying to sort out the sale of the house, and originally he has said he wants half the equity, even though I paid the deposit of 35k and he signed a Declaration of Trust, since then he has changed his mind and says that the trust still stands and he will let me have the house and he will not come after me for maintenance for his older child. there is about 6k equity in the house after the 35k and agents fees etc. he will also not pay any of my legal fees. He got 128k from his mothers inheritance and singed an Undertaking for 50k in April. he has insisted that we do full financial disclosure which obvioulsy costs a lot more and he has not submitted all his details - he has had two solicitors and is now representing himself. I have now racked up costs of almost 12k with a solicitor and cant see any fairness in any of this. Can he really walk away with 128k and leave with with debts which were some his (he was out of work I paid for training courses!) and continue to write to my soliciotor to increase my costs. This may not be very clear but I am struggling financially and am concerned I wont have a home for myself and my son.


 


I just need to understand:


1. Am I liable for Maintenance for the 14 year old as he has asked me for 15% of my salary and said he has submitted a court order


2. Is the Declaration of Trust (35k) valid after we are married


3. Am I entitled to any of his Inheritance


4. Does he have to pay me back the 9k I paid on his credit card?

Submitted: 3 years ago.
Category: Family Law
Expert:  familylawexpert replied 3 years ago.
Hello,

My name is Mac. I will be able to help you with your question. First I need a bit more information:

- when did you execute the Declaration of Trust (and what does it say about his share, if any)?
- what is your income (after tax)?
- do either of you have any pensions?
- has his son lived with you for the last six years?
- did you financially support his son (and him) during that period?
- would you say that his son was treated as a child of the family (ie a child of you and him) during that time?
- what undertaking did he sign in relation to the £50k you mention?

Customer: replied 3 years ago.


1. the Declaration of Trust is attached for your reference, it was executed on 5th Oct 2007


 


2. my annual salary has just been increased to 80k per annum. so after tax £4,446 pm - why is this relevant??


 


3. his son lived with us actually for 7 years, he stayed with his mother during half terms and half holidays.


 


4. We both worked full time, but he was out of work on a few occasions where I would have had to support the house.


 


5. his son was part of the household but if there were any problems then it was dealt with by my ex. We did argue as he did not think I should discipline him without consulting him - his arguement is that he is a child of the family. He has recieved maintenance for him from CSA for many years and has recently had to go through a court case with the childs mother and I was not involved at all or spoken to by Cafcass. if he was a "child of the family" i assume I would have had some conultation in this?


 


6. The Undertaking was for him not to spend the last 50k of his inheritance that he received in May this year. the total inheritance he received was 128k i have also tried to attach this.


Attachment: 2013-10-31_183539_declaration_of_trust_gleeson.dec1.pdf

Attachment: 2013-10-31_183905_rbrownundertaking1.pdf

Expert:  familylawexpert replied 3 years ago.
Thanks.

The Declaration of Trust is still valid but it is not binding on a family court adjudicating on your respective financial claims, although no doubt a court would be interested in it as a factor.

If a court was to decide your tell respective financial claims, which it would if you don't reach an agreement beforehand, it will consider all of the available assets and debts, which would include his inheritance, and the net value of the house. I do not consider that it would specifically repay back the £9k you paid on his credit card debt, but it would take that into account by virtue of the remaining net assets.

This is a medium length marriage, by virtue of your cohabitation and your child. You both now have a child to care for (subject to what I say below). On balance, I consider that the court would be likely to divide the total capital between you broadly equally, as you both have a child to house. Overall, that would mean a net transfer to you, as you have less in the house than he should have in the bank - although there is a question mark as to what is left of his inheritance. I should add that in general the court takes a different view of inheritances than other assets, but that view is overriden when needs (particularly, like here, a child's need to be housed) are not otherwise met.

Do your work commitments leave you able to look after your four-year old on a day to day basis, or will you need the father's help?

Customer: replied 3 years ago.


My work committments mean I have to pay an au pair and childminder, the father now lives over 120 miles away.


 


He has now written to say that I can have the house and that is it - even though I have incurred legal costs of almost 12k because he has been awkward.


 


Should I just accept this or risk going to court?


 


Am I liable for maintenance for his other son?

Expert:  familylawexpert replied 3 years ago.
I'm sorry - I typed a long answer and have just lost it in a dropped internet connection. I have to run to catch a train now, but I will finish off another detailed answer before 9am tomorrow.
Expert:  familylawexpert replied 3 years ago.
Thanks for your patience.

You have confirmed that you both have a child to house and care for, so your capital needs are approximately the same. There is a limited amount of capital around, so the court is not likely to consider inheritance monies as sacrosant. A broadly overall equal division of capital must therefore be considered to be a realistic outcome.

However, as you probably know already from discussions with your solicitor, no single outcome in family law courts (or courts generally) can ever be considered guaranteed. An broadly equal division of assets is not only a realistic outcome, it is also effectively the best you could expect to do, so the other possible outcomes are worse.

Analysing the numbers, and on the basis that he will have £110k of the inheritance left by the time of the hearing, an equal division of assets would mean c.£75k each, of which you already have c.£41k, so a net £34k transfer to you. But you should also bear in mind that you will have spent substantial further monies on legal fees up to the end of a final hearing (they are not cheap). So your net gain on the best scenario is a further, say £25-8k.

That is not an insignificant sum, but the outcome may not be quite that good, although I still think that on balance you are likely to get some extra capital (but perhaps something closer to £10k). You would need to weigh up whether that was worth the stress and time of going to a final hearing.

One alternative strategy, as part of an overall negotiated conclusion, would be to obtain agreement from him that he will not initiate any claim for children's maintenance, and an undertaking that he will repay to you any amount that you are ordered to pay in child maintenance. However, you may feel it not necessary to do even that (see below).

In my view, he will be hard pressed to obtain maintenance from you in respect of the 14yr old. It is not likely that he would be successful in obtaining that.

I hope that is helpful. If you would like me to clarify anything, please ask. If not, I would be grateful if you could rate my answer.

Regards,
Mac.


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