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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34234
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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Divorce

Resolved Question:

My partner's ex wife will not sign the decree nisi despite initially indicating that she was in agreement to divorcing by 2 years by consent. She is also being totally unreasonable regarding finances which may prove impossible to resolve in order to get a decree absolute. Please could you advise what the protocol is for obtaining a divorce without consent after 5 years, they have already been apart for 3 years so we could easily wait 2 more if we knew that one way or another the divorce will happen. My partner can ill afford to pay more solicitors fees when there is no outcome. They unfortunately have a joint mortgage and she is demanding 20,000 to sign it over despite my partner still paying off a 27,000 debt which she incurred and he added to the mortgage whilst still together to help her out. We are living in the marital home so would all this be something that a judge would decide at the end of 5 years? Your help would be very much appreciated.

Further my partner has no proof that the secondary mortgage is a result of a credit card debt incurred by his ex wife and it has added a 3rd to the monthly mortgage payment. She does not accept that this is a factor in in anything and wants her money from the house or it must remain a joint mortgage or we have to sell which we don't really want to do at this time.

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.
How much is the house worth and how much is outstanding on the mortgage?
What other assets are there and what income do they each have?
Clare
Customer: replied 2 years ago.

Hi Clare, the mortgage remaining is around 80 - 85,000 and it would sell for around 115,000 to 120,000. There are no other assets such as pensions or savings.

We would really like to know what the protocol is for waiting 5 years too.

My partner earns around 1200 a month out of which he is paying a mortgage of around 656 a month, a third being the debt plus around 240 a month now for csa so not leaving a lot a the end of the month. Clear cut advice and what we can and can not do would be so appreciated. Many thanks Lynette

Expert:  Clare replied 2 years ago.
Hi
What offer of settlement has your partner made?
Clare
Customer: replied 2 years ago.

Hi

Due to the fact he is paying off the debt of 27,000 which has added a 3rd to the mortgage and has to keep paying for the next 15 years, no settlement has been offered. Our solicitor advised us that she basically should get nothing as her share of the house if it were to be sold is more than wiped out by the debt which is being paid off.

We really want to know rather what happens if we wait the full 5 years, what is the protocol. His ex wife will never accept anything less than 20,000 and we don't want to waste any more time trying to negotiate with her. If you could outline what happens if an ex won't consent, what the process involves etc that would be appreciated. She won't even sign a decree nisi. We think she has accrued more debt and is hence asking for this sum. So if we wait another 2 years, how is a divorce granted and what do we need to do? many thanks

Expert:  Clare replied 2 years ago.
Hi
How long were they living together - and what were the debts used for.
(This will remain an issue no matter when the divorce takes place)
Clare
Customer: replied 2 years ago.

They were married for 23 years and my partner knew nothing of the credit card debt until she approached him and told him about it. He has no idea what she spent it on as she simply told him what bills to pay and would not show him any of the paperwork. We know that this can not be proved and that only a credit check would show what she did.

My partner is at his wits end as her mind set is such that she won't recognise she has done anything wrong or that morally she should not get anything.

Please could you advise in the meantime what waiting the full 5 years would involve even if it means a judge saying what has to be done.

Thank you.

Expert:  Clare replied 2 years ago.
Hi
I am sorry but it is highly unlikely that a Court would take any account of this debt as your ex will simply say that it was used for family spending.
The eventual division of the equity is likely to be a straight 50/50 - and of course his ex can apply to force the sale at any time - and will succeed
So far as the Divorce is concerned in another two years your partner will have to apply to have the existing petition dismissed using a form D11
http://www.familylaw.co.uk/system/uploads/attachments/0002/0835/D11.pdf
Then he can apply for a divorce based on the fact that they have lived apart for more than 5 years.
The only basis on which his ex could defend it would be on the basis that finances have not been resolved - unlikely to succeed in these circumstances
I hope that this is of assistance - please ask if you need further details
Clare
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Clare,

Would you advise then that my partner gets the decree nisi paperwork served on his ex. She has already had it but never returned it and if she does not sign and return it once served, will the Court grant the decree nisi anyway as there is email evidence in which she has said she agrees to 2 years by consent? If we continue now do you suggest that we do agree a settlement of some kind?

And if we wait 5 years, does this mean he will end up having to give her half anyway of the equity in the house? Finally, I did not think she could force the sale or in order to force it would it mean her going down a legal path as she has no means to do this?

Many thanks

Lynette

Expert:  Clare replied 2 years ago.
Hi
Did she confirm her agreement to a divorce based on two years separation in writing?
Clare
Customer: replied 2 years ago.

Yes via email to the solicitor.

Expert:  Clare replied 2 years ago.
Hi
When was the Petition served on her?
Clare
Customer: replied 2 years ago.

Hi Clare,

Basically she never returned the papers sent by Court in March. The solicitor then tried to get it agreed by sending it directly to the Court with all the email evidence but they stated they needed proof of it being served. So if an enquiry officer should now serve it and she does not sign and return to Court, will the Court grant it with the proof that it has been served and the supporting emails? Further if my partner makes a will at this time can he stipulate that his half of the house would not go to her but to his children for example? We could really do with a positive line of action! If we wait 5 years, will the judge make the finanicial judgements ie state for example the house must be sold or the ex be given her share? Thanks