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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33293
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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My husband and I have been married for 21 years although we

Customer Question

My husband and I have been married for 21 years although we have been together for 30. I am 52 years and my husband is 57years old. The marriage has broken down and we are separating. We have two children age 14yrs and 17yrs.
We purchased the property in joint names for £44,500 in 1986. We had to re-mortgage in 2009 for £120,000 to clear my husband’s bad business debts/tax bills and to avoid bankruptcy. We only had £10,000 left on the mortgage. He did not have enough equity (£73,000) in his share of the property then valued at £157,000 to clear his debts so had to use some of my equity (15,000). Many of these debts I was unaware of until it reached bankruptcy stage! The property has now been valued at £175,000 and the outstanding mortgage is £93,000 so there is £82,000 equity. I have been paying the mortgage since 2009 the majority of the household bills and the child care bills. He has concentrated on paying his phone bill, car maintenance and monitory financial contributions towards the shopping as he has been working inconsistently. In addition there are currently credit card/overdraft debts of £20,000. He has taken no financial responsibility /interest which is almost half of why we have ended up in the situation we are in. Whilst initially he was asking for a 50/50 split of the equity he is now asking for no less than £25,000 as his share of the equity before he moves out. The property is currently in my sole name. He has no hard means of providing financial support for our children at present and I am not sure about in the future either. Both would like to go to University. The chances of gaining anything from him through the CSA is minimal and he has made this quite clear, and I know it will add to the acrimony and will be like chasing fresh air. I work full time. I can re-mortgage at the moment for £132,000 to keep the cost just below what I am paying now.
I am currently going for a Deed of Separation at present as a divorce is too acrimonious and for my own mental health. At some point in the future I will apply for a divorce more than likely in two years. I have a full NHS pension of 32 years and he has a very small private AXA pension plan having worked for several employers over the years and back tracking is going to be a nightmare! My question is would he be also entitled to half of my NHS pension & a small Pension plan I have of £13,000.
My questions are
1)Is this a reasonable amount for him to ask for? What would constitute a reasonable offer?
2)Would it be better to just sell up and move on and would he still be entitled to the same amount
3)Please can you clarify re the Deed of Separation and any financial order/consent order that can be put in place. Is this just a legal agreement/ I feel very cross that having paid out once to clear his debts am now still having to pay out as he is still entitled to a share of equity.
4)Once this financial settlement has happened with the house apart from my pension can he come after any other finances in the future. I say this in light of him already having had his share of equity once and finding he is still entitled to more!
5)Does any pension entitlement apply to just the years we are married up to the point when we separate or up to divorce?
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
I am aware that you do not wish to move - but how much would an alternative three bedroom property in the area cost to buy?
Clare
Customer: replied 2 years ago.

Hello Clare.


A similar property is going to cost in the region of what our house is valued at now or more. Fortunately or unfortunately, properties in the area I live in are very popular so it would sell easily but I may not get one at that price. Chances are I would have to go up to £180, 000-200, , 000 and possibly just outside the area. I am keen no to move as school for my 14 yr old is within walking distance snd on the bus route for my 17yr old to get to college so it is less disruptive for them.

Expert:  Clare replied 2 years ago.
Hi
Was all the debt money for his personal debt?
Clare
Customer: replied 2 years ago.

The debt comprised of Unpaid income tax debt, Debt to several traders/companies, County court judgements for debts he had not paid but they had to be paid in order to remortgage, Fees for solicitors and courts in the bankruptcy and bankruptcy annulment. The £90,000 debt was accrued soley by my husband. unfortunately he buried his head in the sand and did not tell me. The rest of the remortgage to 118950 incorporated paying off what was left on the original mortgage approximately £10,000 and associated fees and payijng off a bank loan for household maintainance.

Expert:  Clare replied 2 years ago.
Hi
How much was the Income tax part - do you know?
Clare
Customer: replied 2 years ago.

At least £21, 000 was just income tax.

Expert:  Clare replied 2 years ago.
Hi
Would you be willing to divorce sooner rather than later
Clare
Customer: replied 2 years ago.

I would look to divorce in the next two years but it is far too acrimonious at the moment. I initially started down this route but he would not accept any responsibility for his actions. My thoughts was therefore to wait the two years then divorce on the grounds of being separated two years. He would not divorce me as he was far too comfortable!

Expert:  Clare replied 2 years ago.
Hi
Has he said that he willing to accept the £25,000 in Full and Final Settlement - including in respect of your pension?
Clare
Customer: replied 2 years ago.

No. Not the pension just what he thinks he is entitled to out of the equity of the property.

Expert:  Clare replied 2 years ago.
Hi
For Clarity.
The current equity is £80,000 (including notional sale costs)
Four years ago you had to re-mortgage to cover his debts in excess of £100,000 - £20,000 of which was tax debt (this is relevant as it is something the court would regard as joint debt.)
You have a substantial Pension plan - he does not
The first point to make is that he does have a claim on your pension - essentially half of it since it is likely that you have been paying in all the time you were together although there would have to be a balancing exercise with the pension that he does have
Equally the starting point for division of the assets is 50/50.
However the fact that you have to house the children and he has already had a large chunk of the equity will mean that you can expect to receive substantially more - and I would hold out for an 80/20 split in your favour - ambitious but I believe achievable if the matter went to court.
If he wants more then you need to negotiate it in terms of him having less of your pension
Whilst I understand your point with regard to the divorce the only way you can ensure that he does not get a third bite of the assets would be by having a Final Order made within the Financial Side of Divorce Proceedings
A Separation agreement would be the second best thing - but the Pension Sharing Order will then actually be made at least two years after you have agreed it and will bite on the pension as it is when the order is made - not when it was agreed.
I hope that this is of assistance - please ask if you need further details
C;are
Customer: replied 2 years ago.

Hi Clare,


 


Thank you for your advice so far. This is certainly a minefield!



Just for clarity, is his entitlement to my pension for the total time were together or proportionate only for the years we were married or to my total working life pension regardless?



I can't help but feel somewhat penalised (and if truth be told - bitter) for doing the right thing, for working hard everyday of my life, paying my tax and pension and now having in effect having to hand it over to someone who has taken no financial responsibility and yet will reap the rewards on the back of me.



I guess I can see your point of getting a divorce sooner rather than later!

Expert:  Clare replied 2 years ago.
Hi Maureen
That is an arguable point.
Acting for you I would argue that it is half of the 21 years you were married - acting for him I would say half of 30 years you lived together
There is no absolute set answer as the approach taken by individual judges can differ
Yes the sooner you divorce him the sooner the big black line is drawn under the finances
Clare

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