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Harris
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2545
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My marriage has broken down due to domestic violence. My

Customer Question

Hi my marriage has broken down due to domestic violence. My husband bought the house a year and half before we got married, we have no children but have been married for 11 years (since Nov 2005). We were married in Goa, India - we are both British citizens. However, I was new to the country and not a British citizen when I married. I did not have a job when I came to the country and it took me about 9 months to find a job which didn't last too long, since then I have been worked but have not been too lucky in jobs and have recently been terminated. I have had a history of depression since I married and have also had problems at work which have caused me to sink into depression. My husband wants me to move out of the house as he has been paying all the bills including the mortgage and council tax. I am willing to move out however he is only ready to pay me a settlement of £20,000 which I feel is unreasonable if I need to find a place to stay/own a property to put down as a deposit and also due to the fact that I do not have a job at present. Please could you advise? I do not think I can claim legal aid as I have only recently been unemployed as of this week.
Submitted: 9 months ago.
Category: Family Law
Expert:  Harris replied 9 months ago.

Hi, thank you for your question. Just a bit more information required to fully assist you:
-How old are you both?
-How long have you been separated?
-What assets and pensions do you both have (both sole and joint), together with values?
-What are your respective incomes?

Customer: replied 9 months ago.
I am 44 and he's 45. We are both living under the same roof and are not legally separated. We married in Nov 2005 and the breakdown has been since the past three years. The house is jointly owned and I have just a few pieces of furniture and things under the value of £2000.
My last income (I am not employed at the moment since last week) was £30,000 p.a and his income should be £40,000 p.a
Expert:  Harris replied 9 months ago.

Do either of you have any othdr assets at all, such as shares, savingz, investments or other properties here or abroad?

Customer: replied 9 months ago.
we both have individual savings accounts here. I do not know the amount he may have saved. We do not have any investments abroad.
Expert:  Harris replied 9 months ago.

How much is the home worth and what is the outstanding mortgage?

Customer: replied 9 months ago.
House is worth £190,000. Abt £80,000 left of mortgage. He bought the house was bought a year and half ago before he married me. And it's not in our joint names although just recently my name was added to the land registry
Expert:  Harris replied 9 months ago.

Thank you for confirming. Firstly, as you are married and the property is the matrimonial home it will be considered a matrimonial asset and you have a right to occupy the property until divorce - you have stated that your name is ***** ***** the title of the property - if this is as a co-owner, then you have a legal interest in the property.

Furthermore, given your long marriage it will be difficult for him to attempt to ring-fence any assets acquired prior to the marriage and the court will require consideration of all assets in order to reach an equitable settlement for you both.

Initially this should be attempted through mediation - you can find independent mediators here: http://www.familymediationcouncil.org.uk If a settlement is agreed this can be submitted to court under a consent order (together with a D81 form outlining your respective financial positions).

If mediation does not progress you should then proceed with an application to court under Form A for financial relief once the divorce petition has been issued.

You will both need to provide each other with full and frank financial and income disclosure, as well as disclosure of your reasonable needs. The Court's starting point is a 50-50 split of all matrimonial assets and ensuring that both your needs are met in relation to both assets and income. The criteria considered is:

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.

If you have any further questions regarding this please let me know. In the meantime if you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for answering your question without a positive rating. Thank you

Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2545
Experience: Family Law - Specialist in Divorce, Financial Relief and Children Matters
Harris and other Family Law Specialists are ready to help you
Customer: replied 9 months ago.
You hadn't answered my last question however I have paid you £49.
Expert:  Harris replied 9 months ago.

Sorry, what is the question?

Customer: replied 9 months ago.
I am not sure if I have done the right thing. We were supposed to go for mediation this Friday but I asked my husband to consider giving me more than he was initially offering me which was just £20,000. He has agreed to give me £30,000 which he has emailed me to confirm today so we decided to cancel the mediation but I am wondering if it's too little to settle for as I am currently without a job and would want to buy my own home/flat when I do start working. He expects me to stay in a rental or shared accommodation which I am unwilling to do as I find the rental market very high and as for shared accommodation, I cannot bear to think of sharing a room or place with a stranger or strangers. I would be grateful for your advice. When my marriage broke down I have undergone severe depression and feel that I can't easily socialise or explain things to others. I have a job interview this friday which I am not confident of giving my best.
Expert:  Harris replied 9 months ago.

Based solely on the equity in the property, I feel that you would be entitled to more. You have also stated there are undisclosed savings and given your long marriage all this should be taken into account.

As stated above, the starting point is a 50-50 split of the matrimonial assets and given based solely on the equity in the home you should be entitled to start off negotiating at approximately £50-55,000 for a fair settlement - but you must find out what other assets there are.

Customer: replied 9 months ago.
Thank you for the response. I have engaged a solicitor who has asked us both to declare our finances and assets. My husband bought the house a year and half before he married me and decorated and furnished it completely. Leaving me to do nothing for the house and has been paying the morgage, council tax bills etc. So besides a few odd pieces of furniture and things I don't really own much. My job too has not been a secure one as initially when I came to the country I didn't have a job for about 9 months and then only had temp jobs with minimal pay which didn't last too long. Since the last 2 years I have been self employed but now my contract is over and I am unemployed currently on Job seeker's allowance since a month but awaiting a response from a recent job interview I had. The solicitor that I have hired maintains that I should go ahead with a divorce petition but I have insisted that my husband should declare his finances before we go ahead with the divorce petition. I really am not sure if I should engage an arbitrator as I feel my husband may or may not declare his finances. Please could you advise if the court ultimately decides how the financial settlement needs to be done? I am not sure how the process/procedure works and my current solicitor doesn't seem to give me the guidance I need - it's me who has to advise him rather than the other way round!!
Expert:  Harris replied 9 months ago.

Given you have been married for 11 years, your husband acquiring the home prior to marriage will not matter, especially as it has been used as the matrimonial home.

In relation to the divorce, if this is issued, it will not prevent you dealing with the financial matter alongside it and even once you are divorced the financial matter can remain on-going until a settlement is reached.

If no agreement is reached between you, your only option would be to pursue a financial relief application to court.

Customer: replied 9 months ago.
in my divorce petition my grounds of divorce have been unreasonable behaviour which my husband wanted changed to marriage broken down due to 5 years of separation, my solicitor advised me that I could go ahead and accept what my husband has said about 5 years of separation but I feel that is not the true cause at all and told my solicitor that I want to stick to my petition of unreasonable behaviour, however this is what my solicitor has responded : ''It is very rare for people to defend divorce proceedings and I hope that your husband will not do that, but of course it is not likely to make him more co-operative. (If he does defend, I doubt that he would be successful, but the costs of defended proceedings would probably between £500 and £10,000 plus VAT, possibly more. If you win, you would usually receive an order for costs, but it would not be likely to cover all of your costs, and if your husband failed to pay them, you would have to incur additional costs enforcing the costs order against him.)''I really am not sure what I should do next. Please advise.
Expert:  Harris replied 9 months ago.

You cannot apply under 5 year separation as you state that the marriage broke down 3 years ago. In the circumstances you can apply under 2 year separation (but would require your husband's consent). Legally speaking the whether you rely in 2 year separation or unreasonable behaviour will not make a difference to the financial matter and it may be in your interest to attempt to have the divorce amicable whilst you focus on the financial issues. Citing reasons for unreasonable behaviour may cause acrimony between you and impact his negotiations regarding the finances.

Customer: replied 9 months ago.
Thank you for your advice Harris. I will follow your advice about the breakdown in marriage. Please could you tell me when I could appeal to the court for financial relief? Is it at the same time as the divorce petition or after? As I do not understand how divorce proceedings or financial matters work, this would be really useful to know.
Expert:  Harris replied 9 months ago.

You can submit a Form A as soon as the petition has been issued. Initially you should be attempting mediation and if mediation is not suitable the mediator will sign you off and you will be able to proceed to court regarding the finances.

Customer: replied 9 months ago.
Thanks Harris my last question, instead of a mediator, could I hire an arbitrator and if yes, at what stage should I be hiring him?

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