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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 1186
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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My sister has been separated from her husband two

Resolved Question:

My sister has been separated from her husband for about two years. She lives in the family home with her two children. Although for the benefit of the children, they spend one week with their father (in his rented home) and one week with her.
He has now engaged a solicitor and has requested the divorce. He would like to have a 50/50 financial separation.
My sister is self employed as a Spanish teacher and needs a house that is big enough to be able to accommodate all of them and enable her to continue to work, as her husband does not provide any maintenance under the grounds that he has the children for 50% of the time.
The issue is that if the house was sold, with 50% of the equity released my sister would have to move too far away from the schools etc. so she would like to defer the sale of the house for 5 years until the children leave for University.
Is this something that a court would consider if she went ahead with the divorce?
Or is there a way to delay the divorce proceedings until this time?
Her husband is a self employed contractor in the IT industry and earns large sums of money and is able to afford to rent a property or get a second mortgage easily, but as my sister has a low level of income and is self employed she feels she would not be able to provide a suitable home for her children without creating a great deal of stress for them.
Submitted: 2 years ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 2 years ago.
Hello
Thank you for your question.
I am a Solicitor and will assist you.
If matters can't be agreed at mediation then your sisters husband could make an application to the court in respect of the matrimonial finances.
In relation to the matrimonial finances - The correct process for dealing with the matrimonial finances and division is to go through a process known as full and frank financial disclosure. Your sister and husband need to exchange full details of all assets ( including pensions) and liabilities before negotiations take place in relation to settlement. Everything is included in disclosure - all assets and liabilities - not just the family home.
The normal rule for division is 50/50 however the matrimonial causes act sets out factors which could lead to a departure from this rule. A few examples are the likely earning capacity of both of you for the future, health needs, future care of children etc. As you have mentioned that your sisters earning capacity is less than her husbands then really your sister should be arguing for a bigger share than 50/50. Somewhere between 10-20 % depending on the difference.
Given a difference in income your sister should also be considering asking for spousal maintenance from her husband.
I note that you have stated that the care of the children is shared. The court will consider the housing needs of the children in these types of applications. Your sister could ask the court for a Mesher/ Martin Order. If granted the house would be sold after a certain event had been reached such as the children reaching a certain age. If the main equity is in the matrimonial home then courts will often agree that the matrimonial home should be sold and the parties should downsize.
If may well be that after full disclosure has taken place and say if the husband had other assets maybe also a much larger pension then your sister that these could be offset (possibly along with forgoing spousal maintenance) and your sister might be able to keep the house? Your sister really does need to be in receipt if full disclosure before negotiations start as to division.
Mediation will help will full disclosure and negioations about division.
Your sister could choose to contest the divorce proceedings. There are strict time limits to do this. Contested divorces are also often expensive. It is not otherwise possible to delay the divorce.
Kind Regards
Caroline
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