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UKfamsol
UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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My husband walked out on our relationship last autumn. He

Customer Question

My husband walked out on our relationship last autumn. He moved into rented in November while I stayed in the marital home with our son, aged 14. He sees our son at weekends. We have not yet agreed maintenance nor spoken to any solicitor together - he has suggested that we work out all the details between ourselves and then get them 'rubber stamped', but I am extremely wary of this. In the last two weeks he has been putting pressure on me to get the house valued with a view to putting it on the market asap. He has also been saying to our son that he should not expect to be able to stay in this house, nor necessarily stay at the same school (fee paying). I feel I definitely need to start speaking to a solicitor by myself, but worry that this will aggravate things. (Additional info - I put the marriage and our son before my career, and although I have a job I love working in a school, it only earns me £15K before tax - my husband earns £80K plus bonus.)

Submitted: 3 years ago.
Category: Family Law
Expert:  UKfamsol replied 3 years ago.
Hello and thanks for your question.

I need a bit more information to be able to answer:

How much is the house worth and how much is outstanding on the mortgage?

What other assets and debts are there?

Customer: replied 3 years ago.

Thanks for getting back to me.


House value: £300 - £350K


Outstanding on it: £97K. No other debts.


ISAs: £12K each of us


Mortgage shares from a previous home plan policy: £12K I think


Joint critical illness plan with surrender value of £6700


I have two small pensions from teaching jobs, estimated value £14K


I think husband has a SIPP from his last job, and £183K was applied to it in 2012. I am assuming that his pension is worth at least this amount right now; he changed job a year ago but the pension would have continued.


I earn £15K before tax.


Husband earns £80K (plus a bonus, but I don't know what that is).


Please ask if there is any other info you need.


Many many thanks for your help!


Becky


 


 

Expert:  UKfamsol replied 3 years ago.
Hello again and thanks for the extra info.

Using the figures you have given me (obviously these are just estimates, and would need updating with proper valuations), it seems that the total matrimonial assets are as follows:

 

Equity in the house £228,000

Your ISA £12,000

His ISA £12,000

The surrender value of the

critical illness plan £6,700

Mortgage shares £12,000

Lump sum from your pension fund

estimated at

25% of CETV of £14,000 £3,500

Lump sum from his pension fund

estimated at

25% of CETV of £183,000 £45,750

Total £319,950


(You haven't mentioned any debts - these if any would need to be taken off the £319.950, to arrive at a figure for NET matrimonial assets to be divided.)

 

I am guessing that your ideal scenario would be to stay in the house with your son. So one possible division of the assets would be as follows:



You

The house £228,000

Lump sum from your pension fund

estimated at

25% of CETV of £14,000 £3,500

Total £231,500



Your husband

His ISA £12,000

Your ISA – transferred

into his name or

cashed and given to him

as a lump sum £12,000

Mortgage shares– transferred

into his name £12,000

The surrender value of the

critical illness plan– transferred

into his name or

cashed and given to him

as a lump sum £6,700

Total £88,450



Your share £231,500 plus his share £88,450 = £319.950



His percentage share = £88,450/ £319.950 x 100 = 27.64%

Your percentage share = £231,500/ £319.950 x 100 = 72.36%



The above is only one possible way that the assets could be divided.

 

If it goes to court, the court starts from the position that the assets should be divided 50:50 – then looks at reasons why that should not happen eg if there is a big disparity in incomes, and/or one person is to provide a home for the child of the family.

 

Both of these apply to you, so you could definitely argue for a greater than 50% share – but this is more usually 60% or 65%, rarely 70% or more – although it does happen from time to time.


Your husband's mortgage capacity is at least 3 x £80,000 = £240,000

 

Your mortgage capacity is 3 x £15,000 = £45,000.

 

Is there anyway that you could increase your earnings eg by working full-time and/or getting a promotion so that you are earning at least £97,000/3 = £32,333 ?

 

The ideal outcome in divorce is a “clean break” ie where the financial ties between the parties ends (but this does not apply to any children). For this to happen in your case, and for the house to be transferred into your sole name, you would need to be able to take on the mortgage in your sole name. No building society is likely to agree given your current income unless possibly if you can find someone to act as your guarantor – a family member maybe?



It is possible for the court to order (or for you and your husband to agree) that the house & the mortgage stay in joint names until your son has finished his education, with your husband giving up the right to enter or stay in the house. In this scenario, as his mortgage capacity is £240,000, he would still be able to get a second mortgage on another small property for £240,000 - £97,000 = £143,000.



The court is keen not to disrupt children if at all possible and to try to find a solution that allows the carer of any children dependent children to stay in the matrimonial home if at all possible.



The other option is that the house is sold and you get all the net sale proceeds of £228,000, which with your mortgage capacity of £45,000 would allow you to buy a small property for £273,000. Your husband would then be free of his mortgage liabilities attached to the former matrimonial home and could buy himself a property for £240,000. This would keep the percentage shares as set out above.

 

Or if the house is sold, you may be prepared to give your husband say £13,000 out of the net sale proceeds, which would allow you to buy a property for £260,000 (with a mortgage of £45,000), and him also to buy a property for £260,000 (with a mortgage of £240,000). This would increase his share of the matrimonial assets slightly so mught be easier to reach agreement on that basis.

 

With regards XXXXX XXXXX son's child support, there is a formula for working this out - this website is very helpful:

 

http://www.cmoptions.org/en/calculator/


It may be possible to include the school fees as part of the calculation – but if that cannot be agreed with your husband, then it is not at all certain that a court would order it – it will depend a lot on what other expenses your husband is having to cover eg a mortgage of £240,000 to rehouse himself. It may be that your son does have to leave his fee-paying school – or it may be a bargaining position that you would agree to sell the former matrimonial home, (so ending your husband's mortgage liabiliites to it) if your husband agrees to continue to pay the school fees.

 

The power of the court to make orders in matrimonial cases only comes into play once a divorce petition has been filed at court – but there is nothing to stop the two of you trying to work things out as soon as possible.


As going to court is stressful, time-consuming and expensive, my best advice to you is to negotiate, NEGOTIATE, N E G O T I A T E! You can do this either between the two of you, or via solicitors' correspondence, or via mediation. Mediation is a round-the-table discussion with a trained and neutral mediator. You can find a local family mediation service here:-

 

http://www.familymediationhelpline.co.uk/find-service.php


I think it would be helpful also for you to have some face-to-face legal advice from a specialist family law solicitor. Here's where to find one:

 

http://www.resolution.org.uk/findamember/



Anything you discuss with your solicitor will be completely confidential – unless you give him/her permission to discuss with your husband or his solicitors – so there's no need to worry that this would aggravate things.



If you and your husband do reach agreement, a solicitor can translate that into legal terminology and prepare a draft consent order for you both to sign, to send to court for the court's approval (as long as a divorce petition has been filed at court by this point). Once approved by the court, a consent order is as binding on the parties as an order made following contested proceedings.

 

It is obviously not appropriate for your husband to be worrying your son at this stage when nothing has been agreed between you or ordered by the court - a diplomatically worded letter from your solicitor to your husband could point this out.

 

I hope this helps -or at least gives you plenty of food for thought - and I wish you the best of luck.


Thanks and best wishes...

UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience: Very experienced specialist family law solicitor, qualifed in 1994
UKfamsol and other Family Law Specialists are ready to help you
Expert:  UKfamsol replied 3 years ago.
Thanks so much for your positive rating and prompt payment - much appreciated!

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