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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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Good Morning,Clearly I am in the process of divorce, as

Customer Question

Good Morning,

Clearly I am in the process of divorce, as I am contacting you for advice. Basically there are 2 areas of contention in our financial matters.
Very briefly.

We separated in 2011. In 2012 (Aug.) my wife signed a separation agreement in which I paid her a lump sum 30k deposit for a new small house for her. In that agreement she agreed that I would retain title of a flat that had been left to me by my mother agreed valuation of 95k. At this point everything ok I think we are going to settle amicably, and I really believe they would have at that point.

Then in Feb 2013, I had heart attack. I advised her as next of kin. She didn’t visit me at all in hospital. Didn’t want to know. However as a result of the heart attack I claimed under a critical illness policy I had taken out in the 1990’s. The policy was a joint one paying out on the first instance only of death or critical illness. The value of the payout was 80k but paid as 2 x 40k one cheque to me and one made payable to her. The premiums over 23k were paid from a business account we were both involved in at the time.

My wife has now employed lawyers to claim half of both these assets. She has had the cheque for 40k and banked it.

We have had the FDR hearing at which the judge could not decide. It was a total farce. He said he didn’t know the answers to the following.

Q1 As my heart attack was after the split. Does this payout still go into the pot for splitting between us.
Q2 I have paid all the premiums through my business. Do I get any credit for the 23k paid in.
Q3 Do you know of any case law or precedents regarding critical illness payouts after separation but before final hearing.

Many thanks in advance for any guidance or assistance you can give.

Robin Holding
Submitted: 2 years ago.
Category: Family Law
Expert:  familylawexpert replied 2 years ago.
Hello,

My name is Mac and I can help with your question. First I need some more information.

- were premiums still being paid at the time of your illness?
- had you forgotten about the policy at the time of the agreement?
- can you clarify what she is claiming? Something more than the £40k payout she has already received?

.
Customer: replied 2 years ago.

Yes I was paying the premiums up and until the time of my heart attack.


Yes at the time of the agreement the policy was not even considered.


 


She now wants half of my flat which is mortgage free and specifically excluded in the separation agreement as it was left to me by my parents.


 


This is because she can pay her legal bill with the 40k she got from me, and she is of the opinion she will get the costs awarded to her!


 


 

Expert:  familylawexpert replied 2 years ago.

At the time that you reached, and signed, the separation agreement:
- did you each disclose your financial circumstances to the other?
- did she have any legal advice at all?

.
Customer: replied 2 years ago.

At that time we were still amicable and talking. She had instructed solicitors previously but I had not. I am not sure if she consulted her solicitor at the time. She wanted me to pay the 30k deposit for a new house for her to live in and was insistant, using phrases like "you never do what you promise" etc etc.


 


So I drew up the seperation agreement, sent it to her and she signed it witnessed by her boss at work.


 


She met me gave me the signed form. I signed my copy had it witnessed and sent that to her. On the same day I paid her the 30k.


 


We had many discussions prior to this about our financial situation, although not in a formal disclosure way.

Expert:  familylawexpert replied 2 years ago.

Thank you.

One last clarification before I answer: regardless of how formal it was, did you provide enough information that she had knowledge of your financial position (and, to a lesser extent, you of her situation)?

.
Customer: replied 2 years ago.

Nothing was specificlly provided. We both had knowledge of each others finances as I thought. I had previously scheduled out the major assets of our marriage with her in the room on a spreadsheet. However nothing was specificly included in the agreement

Expert:  familylawexpert replied 2 years ago.
Thank you for the additional information.

On the basis of the information, you have provided my understanding is that you provided broad financial disclosure by way of the schedule you mention, your wife received some legal advice, the two of you reached an overall agreement in relation to your finances and recorded that agreement in a written and signed document. You then after upon that agreement to your financial detriment by paying her a lump sum.

In my view, a competent judge will not disturb the agreement that you have reached, and therefore your wife is likely to fail in her attempt to disturb the agreement.

To answer your specific questions:

Q1
In a sense yes, but I would rather put it on the basis that instead of going into the pot, the two of you each receive the payout that you are entitled to. After all, if she had died / become critically I'll, you would have received your share by virtue of that fact.

Q2
No. Those payments were largely made prior to the breakdown of the marriage, and are not intrinsically different than any other household or insurance policy payments that would have been made during the marriage.

Q3
I am not aware of any precedents on that exact point, but that is probably because it is not a point of complexity. If you had not reached an agreement prior to the illness / payout, they would definitely have gone into the 'pot'; as an agreement had already been reached, particularly given the equal nature of the windfall, there is no need to disturb the agreement.

I hope that is helpful. If you would like any clarification please ask, otherwise I would be grateful if you could rate my answer.

Regards,
Mac
Customer: replied 2 years ago.

Hi Thanks for reply, just for me to be sure can you please confirm my interpretation of you answer


 


Q1
In a sense yes, but I would rather put it on the basis that instead of going into the pot, the two of you each receive the payout that you are entitled to. After all, if she had died / become critically I'll, you would have received your share by virtue of that fact.




Does this mean, argue that instead of it going into pot for 50/50 we each receive the payout entitled to ie:


 


me 100% as the party that had the problem that triggered the payout.


her 0% as she wasnt


 


or do you suggest she may have some entitlement ie.some other split


 


Thanks

Expert:  familylawexpert replied 2 years ago.

The starting point in law is the entitlement that she has in law - namely 50%, as she was entitled to that 50% as a joint holder of the policy with you. It would be you that wanted to disturb the status quo there rather than her. I can see merit in you trying to do that, on the basis that it was your injury. However, you want to maintain the status quo in respect of the rest of the finances, so I it is unlikely to be in your interest to seek to upset the current situation. (ie you would find it difficult in court to say that one part of the status quo should be changed (the insurance proceeds), whilst the rest should be preserved).

My view might be altered if you now suffered from a permanent disability, but I am working on the presumption that you have effectively made a full recovery from the heart attack. If that is incorrect, do please let me know.

.
Expert:  familylawexpert replied 2 years ago.
Hello,

I notice that you have not yet rated my answer. Is there any further clarification that you would like? Please do ask if so. If not, I would be grateful for that rating.

Kind regards
Mac

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