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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33284
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 sister's husband has recently submitted divorce papers

Customer Question

Hi, My sister's husband has recently submitted divorce papers to her and the reason for the divorce is due to a difficult relationship with the mother in law. Since the divorce papers were submitted the relationship has been very difficult and she is finding it really hard to cope living in the same house with him as his behaviour is of a bullying nature. She would like to move out but she cannot afford to pay the mortgage and rent as she only earns £15,000 per year as a care worker.
Selling property in the area is slow so its likely to take some time, as there is only 5 years left to pay on the mortgage, are there any options which will enable her to move out without losing what she is entitled to.
Her husband earns considerably more than her but could not afford to buy her out but is demanding her to pay the costs.
Also she is concerned about how she is going to cope living on her own generally, she has never claimed any benefits in her life, but is there anything that she would be entitled to now her children are grown up?
Any advice you can provide would be very much appreciated.
Many thanks in advance, Vicki
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year 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.
How much is the house worth and how much is outstanding on the mortgage?
What other assets and debts ate there and what income does he have?
How long have they lived together?
Clare
Customer: replied 1 year ago.

Hi Clare,

The house is worth £300,000 and the outstanding mortgage is £39,000. They have been married for 16 years but together for 26 years.

Her husband earns £40,000 per annum and they don't have any other assets that I know of other than the house.

The outstanding mortgage is the only debt remaining.

Hope this helps and look forward to hearing from you soon.

Kind regards, Vicki

Expert:  Clare replied 1 year ago.
Hi
Is the house currently on the market?
Does her husband have any pension provision?
Clare
Customer: replied 1 year ago.

Hi, The house isn't on the market as yet, but will be soon following an official valuation. Her husband has a company pension, she is 46 and he is 47.

Let me know if you need any further information.

Many thanks, Vicki

Expert:  Clare replied 1 year ago.
Hi Vicki
Do you know the value of the pension?
Clare
Customer: replied 1 year ago.

Hi, I'm afraid I don't know the value of the pension but would Image its ok as he's had for at leas 20 years, if not more.

Thanks, Vicki

Expert:  Clare replied 1 year ago.
Hi
Does her ex want to buy her out?
is there any physical violence?
Clare
Customer: replied 1 year ago.

Hi, He couldn't afford to buy her out and no there isn't any physical violence.

Thanks, Vicki

Expert:  Clare replied 1 year ago.
Hi
Has she responded to the Petition - and has her ex told her she will still have to pay towards the mortgage if she leaves?
Clare
Customer: replied 1 year ago.

Yes she has responded and yes he expects her to continue to pay 1/2 the mortgage if she leaves. This would make it impossible for her to pay both payments and he would know that, so makes no sense.

I would have hoped that they could have talked to eachother to resolve, but he refuses to discuss anything with her which is strange as he's the one who wants the divorce.

My niece who lives with both of them in the house is 21 and has said that she would want to live with her mum, so she will need to move to a 2 bedroom flat/house once they've sorted a way to do this.

Do you have all the information now to respond?

Thanks, Vicki

Expert:  Clare replied 1 year ago.
Hi
I hope that she made it clear that she did object to paying the divorce costs
Your sister would certainly not need to pay anything towards the mortgage if she is not living there - and this would NOT affect her claim on the property
The starting point for division of all the assets is 50/50 - and if her ex does try and delay the sale then if necessary your sister can apply for an Order that he vacates the property so that your sister can conduct the sale
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 1 year ago.

Thanks Clare, yes she refused to pay the divorce costs. Can I just check/clarify a few things: -

a) So she can move out and stop paying the mortgage and still claim 1/2 the property when it eventually sales. Is it likely that she would be entitled to more if she stayed in the house until the property sales? I'm just trying to understand why solicitors always recommend couples in the process of divorce to stay in the house. Are there any negative consequences of moving out, will this go against her in some way?

b) If she did move out and he couldn't keep up the increased cost of the mortgage, what would happen then? Isn't there a risk of the house being repossessed and her not receiving anything at all?

c) I was wondering whether there was any kind of 'equity release' scheme that might be applicable in her circumstances?

d) Are there any benefits that she would be entitled to as she would have to find a home for her and her daughter on quite a low income?

Also are you able to back up your answers with relevant legislation, ie how you know why moving out wouldn't affect her claim on the property etc.(eg Is this to do with length of time lived in the house?) I just want to understand the rationale of your advice, what led you to this conclusion. A link to further guidance would also be helpful?

Let me know, thanks, Vicki

Expert:  Clare replied 1 year ago.
Hi
a. Yes she can, and if she is entitled to more than 50% the fact that she is not living there will not be a problem. The negative side is that there is little pressure on her ex to move matters forward - he will be too comfortable. Where there are young children involved it is better to stay put as it relates to housing needs
b. This is a small mortgage in proportion to the equity - if there is a problem with the mortgage then your sister can take action
c. If her ex wishes to remain in the property and can obtain an equity release that gives him sufficient funds to pay your sister off then fair enough
d. She can check her eligibility for benefits on the website here
http://benefits-calculator.turn2us.org.uk/AboutYou
You can read more about the matters considered by the court within a matrimonial settlement here
http://www.terry.co.uk/s25_matrimonial_causes_act.html
Clare

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