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Harris
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 1961
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My husband and I have temporarily separated looking to assess

Customer Question

My husband and I have temporarily separated looking to assess whether we want permanent separation or not. He stopped his payment to the joint account the month he left so I pay all the household bills, day to day costs that are needed to support the childrens' needs as well as any costs related to maintaining the house eg paying the plumber/electrician for their work. Does my husband's lack of regular payment to supporting the children wipe his claim to the equity in the matrimonial home? I had heard that from a friend who is divorced, though she divorced many years ago ( ten years). Thank you.
Submitted: 1 year ago.
Category: Family Law
Customer: replied 1 year ago.
My two children, 12 and 13 years old live full time with me.
Expert:  Harris replied 1 year ago.
Hi, thanks for your question.
As you remain in the property it would be expected that you would meet the costs of the property and not paying child maintenance does not impact his claim for a share of the equity of the property.
However, as you have the care of the children you would be entitled to make a claim for child maintenance and negotiate for spousal maintenance if you are unable to meet your needs from your income. In relation to the child maintenance if you are able to confirm his gross income and how many nights on average the children stay with him I will confirm how much he is legally obligated to pay i.
Initially I would suggest that you refer yourself to an independent mediator to attempt to reach an agreement (you can find local mediators here: http://www.familymediationcouncil.org.uk/), if mediation does not settle the matter you will need to initiate divorce proceedings under form D8 and once issued an application for financial relief under form A. The court will consider all the matrimonial assets and income and reach a decision based on the following factors:
1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. The standard of living enjoyed by the family before the breakdown of the marriage;
4. The age of each party to the marriage and the duration of the marriage;
5. Any physical or mental disability of either of the parties to the marriage;
6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Please let me know if you have any further questions regarding this.
Customer: replied 1 year ago.
I have a company pension which would have been a benefit to my husband. I know he would be able to claim some of it but don't know how the courts would work out how much he would get. Is there a standard approach? My husband has rental properties which he is going to use as his pension so I assume, I will be able to claim against that but is there standard approach that would be used to help define how much I would be able to claim? Thank you.
Expert:  Harris replied 1 year ago.
The court will take into account the full extent of all the assets and the starting position would be a 50-50 split of all matrimonial assets. This starting point is departed from based on your needs, your children's needs and his needs as well as contributions (both financial and non-financial) during the marriage. So if your contributions and needs are higher (likely as you have full-time care of the children), then the division of assets would most likely be more in your favour.
In relation to the pension, when did you start accumulating this (before the marriage or during the marriage)? As it would be usual for only the amount accumulated during the marriage to be taken into account.
Customer: replied 1 year ago.
When you say 'matrimonial assets' will be taken into account, do you mean just those assets ( whatever they are eg property, shares, savings) accumulated during the course of the marriage? No assets accumulated before will be taken into account? We have been together 25 years but only 15 of this being married. I was the major financial provider when we had the children but prior to that, everything was 50:50. I also own more 'assets' though 2/5ths were accumulated prior to the marriage. So in summary, a) I was the main financial provider during our married years. b) I tended to pay 2/3rds of everything and he paid 1/3rd c) 2/5ths of all my assets were accumulated prior to marriage ( inc. my pension). Thank you.
Customer: replied 1 year ago.
Sorry, just to add with info on the first part of my question within this trail...my husband lives in one of our properties that is mortgage free without having any child care costs ...whereas I am paying a mortgage on the matrimonial home and all the child care costs. I don't expect or necessarily want him to support me with childcare costs but I do want to stay in the matrimonial home until the children turn 18 and go to University though my husband says that if he doesn't come back, he will want his share of the equity in the property as soon as he decides what he wants to do.
If the final decision is to get divorced and that decision takes a couple of years to get to....what are the implications in relation to transferring assets to each other? Do you pay capital gains tax on assets you transfer to each other in a divorce situation.Thank you
Expert:  Harris replied 1 year ago.
Matrimonial assets will in the majority of circumstances include all assets that have been either purchased, accumulated, gained value or used during the marriage, however assets that have been held separately would also be considered unless they have been acquired through inheritance as inheritance is not automatically considered in divorce/financial relief and will usually only be looked at when the current assets cannot meet the needs of both of you and the children.
In relation to the pension if he were to make a claim against it, you can argue that only the pension accumulated during the marriage should be taken into account.
If you are intending to stay in the former matrimonial home until the children reach 18, the court can grant such an order (called a Mesher Order) and an order for sale will take effect once the relevant conditions take place.
I would not suggest that any assets are transferred or dealt with, until a final court order is made regarding the finances. Capital gains tax will only be relevant if the property is disposed of, or if you are divorced and the transfer takes place after the tax year in which you divorced begins.
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 1961
Experience: Family Law - Specialist in Divorce, Financial Relief and Children Matters
Harris and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for your advise. You have been very helpful and if I need a divorce lawyer in the future, I won't hesitate to call on you. There are two Harris Family Law Firms noted on the internet, one in Bath and the other in London. Please could you let me have your firms contact details? Thank you.
Expert:  Harris replied 1 year ago.
Those firms are not linked to me and I only provide advice on here - if you require more general advice in the future you can ask me again here by starting your question For Harris,
Otherwise you can find local family firms in your area here: http://solicitors.lawsociety.org.uk/ and select Family Law in the area of practice.
Customer: replied 1 year ago.
Thank you. Will do.
Expert:  Harris replied 1 year ago.
Hope it goes well - I would appreciate if you could rate my response positively so that I can be credited for answering your question.
Customer: replied 1 year ago.
I did that a couple of minutes ago and gave you a 5 star rating. The information you have given me today has really helped me think through my future position and what the implications and outcomes could be for me. Thank you so much.
Expert:  Harris replied 1 year ago.
Thank you

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