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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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I am seeking a divorce after years of living apart in the same

Resolved Question:

I am seeking a divorce after years of living apart in the same flat with wife and 2 daughters aged 19 and 25. They all want me out and I being 54 have offered 50% upon sale to my wife to buy separate homes. The daughters want to live with her and expect me to give her more. I have paid the mortgage all their lives and can't afford to take new loans. They all have an income. Do I have any obligations to provide a home for my adult daughters?
My wife has other assets in her own name which she refuses to include in any settlement but also wants half my pension
Submitted: 2 years ago.
Category: Family Law
Expert:  UKfamsol replied 2 years ago.
Hello and thanks for your question.

You do not have any obligation to provide a home for your adult daughters.

You & your wife can choose to come to any agreement you want - but if you want that agreement to be legally binding, the only way is via a court order, once a divorce petition has been filed at court.

Once the divorce petition has been issued by the court, either one of you can apply to the court to decide how the matrimonial assets should be divided, if you can't agree between yourselves.

However, going to court is expensive, time-consuming and stressful, so if the two of you can reach an agreement whether between yourselves or via solicitors' correspondence or via mediation, that is much better. Any negotiation needs to be on the same basis that a court would decide the issues - or you risk the agreement being overturned at a later date. That means that both of you must provide full details of all your financial circumstances to the other.

The court starts from the position that the matrimonial assets should be divided 50:50 - then looks at reasons why that should not be the case eg if one party has a significantly lower income than the other, or will be providing a home for DEPENDENT children then they can argue for larger than 50% share.

The matrimonial assets include everything in your name, everything in her name, and everything that you own jointly whether with each other or with anyone else.

Your wife will be obliged to provide you with full details of all her assets. Your pension entitlement also counts as a matrimonial asset, so you will have to provide her with details of that. Sometimes it is possible for a spouse to argue that a particular asset should not be added in and counted as a matrimonial asset eg an inheritance which has alaways been kept in a separate account and not used for household expenses - but the general rule is that first, everything must be declared and then secondly, unless there is very good reason, everything will count as a matrimonial asset.

If your wife wants to stay in the flat with your daughters who are earning, then she has the option of raising an additional mortgage to buy out your share with their help eg by putting their names on the deeds of the flat & the remortgage deed, at the same time that your name is ***** ***** but don't make any decision about what would be a fair share until you have all the information about all her assets, an uptodate valuation of the flat, & redemption figure on the currrent mortgage at least. I would strongly advise getting some face-to-face legal advice. Here's where to find a specialist family law solicitor:

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

If you can reach agreement with your wife, a solicitor can draw up the agreement into a draft consent order, which both of you sign, and this is then sent to court for the court's approval. Once approved by the court, (if the district judge deems that the agreement is fair to both partie) and entered onto the court record, the consent order is as binding as an order made following contested proceedings

I hope this helps and I wish you the best of luck.


Thanks and best wishes...

Customer: replied 2 years ago.
Thank you and this advice is precise and helpful. You mention "dependant children" but my daughters are 19 and 25 and in gainful occupation. They claim that I have to provide a home for them with the mother. If I do, I will be homeless and unable to buy another house given my age and income. Is it reasonable that this requirement by them would be considered by a court. That's all and grateful
Expert:  UKfamsol replied 2 years ago.
Hi again - sorry for the mix-up - by putting the word dependent in capitals, I meant to stress that your adult daughters are definitely NOT dependents! They are adults, they have their own income, and no one gets child benefit for them - so you defnitely do NOT have to provide for them.

When you have full information about all your wife's assets and all your assets, add up the total and divide by 2 - then take off what you have already eg your pension entitlement, plus any other assets you have, and the difference is what you can argue is your share from her. She can either agree that the flat be sold and you get your share from the net sale proceeds, or if she wants to stay in the flat, she can add the girls' incomes to her own to get a bigger mortage to buy you out & pay you your share. How she pays you is up to her - the girls can choose to help her if they wish, but their assets and their needs do not affect your share of the matrimonial assets.

Ultimately, if you can't reach agreement, then you can apply to the court to decide - but neither of you will want to go down that route if it can possibly be avoided.

I do hope this helps 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
Customer: replied 2 years ago.
I am , if required prepared to pay an additional fee as I forgot to add the following yesterday:-
Neither my wife or daughters talk to me and write abusive,, unjustifiable rude,abusive letters, accuse me of being a loser and failure in every sense and constantly try to ridicule me. I have previously been on medical care for depression.this abuse basically requires me to be a good father and leave the home. But I can't afford to pay the mortgage and leave to another home elsewhere. Can I stop the abuse and how. CanI require the daughters to leave the matrimonial home?
My pension is £70000 total fund and her assets ( inherited) abroad are worth double that. I have also offered to give up any claim to her asset if she takes 50% of net house proceeds and abandons pension claim. Is this a fair barter to progress.? Mediation failed as she wouldn't agree to leave house.
I have also offered that we go 50% on sale and buy 2 smaller flats where each girl lives with each parent. This is declined as they want a bigger share for 3 and me to find another way or live with my elderly mother who has a small flat. My wife earns less than me but their combined incomes are greater. I pay the mortgage and other costs as they have pets and claim that a good father has to look after his family. What can I do to remove the daughters from the flat as I wouldn't but need to know my rights? Thanks again
Expert:  UKfamsol replied 2 years ago.
Hello again & thanks for your further question. As it does cover quite a bit more than your original question, I would be grateful if you would kindly make a further deposit to cover the time I will take to consider all the issues you raise - thanks.
Customer: replied 2 years ago.
Thanks, I have added a bonus of £20 to the original amount I have already paid before. I trust that goes to somewhat pay towards your caring and helpful counsel
Much obliged
Expert:  UKfamsol replied 2 years ago.
Thanks so much fo your kind remarks & bonus - much appreciated. I will answer your points over the weekend - please bear with me.
Customer: replied 2 years ago.
Noted with gratitude. Will await answer when convenient for you.
Expert:  UKfamsol replied 2 years ago.

have read through your further points, and my advice is as follows:-


You cannot get any court order relating to the flat or the assets overall until a divorce petition has been filed at court, so do that now. That is the first step you must take, in order to start the process to get a permanent resolution to everything. Your petition will be based on your wife's behaviour. I think you will start to feel a bit better when you have taken this step.


With regard to the abuse suffered, it is sufficient for you to apply for and be granted a non-molestation orders against both your wife and your daughters, and possibly an occupation order against your wife – but I would query whether tactically that is a sensible step to take.


Both of these orders (under the Family Law Act 1996) are designed to be emergency temporary measures against someone that you have a family connection with. A non-molestation order is an order that the named person is forbidden to threaten violence or be violent to or otherwise harass another named person. Breach of the order is a criminal offence. You apply on Form FLA401


http://hmctsformfinder.justice.gov.uk/courtfinder/forms/fl401-eng.pdf


with a statement and draft order. The court will give you a hearing date very quickly. If court agrees you have made out your case but then your wife/daughters do not agree to accept the order or offer undertakings, a much longer contested hearing would be set up to hear oral evidence from both sides.


An occupation order is applied for on the same form. The purpose of an occupation order is to suspend temporarily someone's property rights – ie an order that someone leaves a property that they otherwise have a legal right to live in. It is therefore more draconian that a non-molestation order. The court would consider the harm to the applicant if the respondent stays in the property versus the harm to the respondent if they are forced to leave.


If you apply for either of these orders, the court will require you to file your divorce petition at court within eg 14 days, because it is only within divorce proceedings that a permanent solution to all the issues will be achieved (eg who lives in the flat, who is to own the flat, whether or not it should be sold, if so, how the net sale proceeds should be divided, whether other assets should be divided and if so how).


Your wife has property rights in relation to the flat a) because she is named on the title deeds and b) as a spouse. Your daughters do not have property rights in relation to the flat – they live there as guests on licence. If the flat was in your sole name, you could ask them to leave and if they refused, you could get a court order to evict them – but your wife as joint owner is entitled to give them permission to stay.


Your property rights in the flat as a spouse and because you are named on the title deeds are not affected by whether or not you are actually living in the property.


Your chances of getting a non-molestation order are greater than getting an occupation order (because the court is reluctant to make someone leave their home at short notice) – but if you don't get an occupation order then you are still living in the same flat with the 3 of them. You would need to report any breaches of a non-molestation order or occupation order to the police for the orders to have any effect, if not complied with


You could move out FIRST and THEN apply for non-molestation orders and occupation orders – that would make it more bearable. In that scenario, if the court grants the occupation order, you could move back to the flat when she has left as per the court order – but I am not sure whether she (as the joint owner) can continue to allow the girls to stay there even if the court has ordered her to leave.


Otherwise, I think the best course of action for you is to move out anyway. If you want, you could give her written warning eg a month – so that she can be aware that once you have left, she will have to pay the mortgage if she doesn't want it to get into arrears. You will still be liable for the mortgage (and arrears) as it is in joint names – but for your sanity, it might be better to rent somewhere, file your divorce petition at court, and immediately make your claim for a financial order within the divorce proceedings. Once you have moved out (or even before) inform the building society that you & your wife are divorcing, and ask for a payment holiday (for say, 6 months) or at least a period of interest-only payments, to allow time for the court to make a final order re all the assets, or for you and your wife to reach a settlement.


I suggest you stop bartering now, file your divorce petition at court, find somewhere to rent, apply to court for a financial order within the divorce. One set of court proceedings to deal with the assets of the marriage will be enough stress without also an application to court for a non-molestation order and/occupation order. You can't tell your adult daughters who to live with. And go and see a solicitor! http://www.resolution.org.uk/findamember/


I really do hope this helps!


Very best wishes....


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