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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34478
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My ex-wife and I divorced in 2011 with a mutually agreed financial

Customer Question

My ex-wife and I divorced in 2011 with a mutually agreed financial settlement. Part of this settlement was that the family home would continue to be occupied by her and the children, but that it should be sold once the youngest child was 18 (12 yrs from now).

Informally the intention was that she would by me out before this to secure the home for the family, and have full control of the future of the property.

In summer 2012, we discussed and agreed that she would buy me out. At that time a 1.3rd equity (less liabilities) would have been approx £130k.

However, she advised me that she had approached a company for lending and that the maximum she could offer was £55k, due to this (plus the outstanding mortgage) being the most they would lend her. She also advised that the new monthly mortgage payment, as a significant increase, would also be the most she could afford.

She was living with someone (now her new husband) and advised he would not be put on the mortgage so as to secure the future property ownership for our mutual children.

It was made very clear that unless I accepted this the process could not proceed as it was simply not possible to pay a higher sum.

I reluctantly accepted the £55k, and provided a letter stating I recevied it as a full and final settlement of my rights on the property.

Since then I have found out that during the remortgage, additional lending related to neither me no to redeeming the original mortgage, was secured to pay off her debts.

Further, despite telling me that the new mortgage payment would stretch their disposable income to the limit, they have since spent freely, including a highly luxury Christmas, a large wedding and honeymoon, and a new car, and a summer holiday for 2013.

Now, as a result of this, they have taken a new loan to clear the debts this spending has created.

I feel I have been significantly deceived, and would not have entered into this more recent settlement without the deceitful presentation of the situation.

Despite being told that £55k was the maximum possible sum I could be paid to me, both the aditional lending secured at the time, and the subsequent more recent lending could only have been granted if affordibility existed, and as such, the information provided to me at the time was a lie.

On the basis that I entered into this agreement on the basis of being deceived, am I able to challenge this agreement?
Submitted: 4 years ago.
Category: Law
Expert:  Stuart J replied 4 years ago.
Hello, I am Law Denning and I am a practising solicitor in a High Street practice. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects. Because we are all in practice with clients and court and other users, I might not always respond in minutes. Please bear with me in that case

It is my pleasure to try and assist you with this today. Please bear with me while I gather some further information from you in order for me to be able to advise you fully.

Unless I have all the facts that I need, my answer would not be accurate.

What are you hoping to achieve?
Expert:  Clare replied 4 years ago.
Hi
Thank you for your question.
I shall do my best to assist you but I need some further information first.
You have referred to a letter and to a mutually agreed settlement - however the two real issues are whether or not there was ever a court order setting out what you should each receive - and have you remarried?
Claire
Customer: replied 4 years ago.


The normal financial arangements were satisfied during the divorce.


 


The divorce happened in Oct 11.


 


I remarried in March 12. She remarried in Mar 13.

No formal legal or court arrangements were involved in the recent variation to the original agreement other than the typical land registry documents, and the letter stating my acceptance of the £55K in full and final settlement. This was signed by both of us.

My question is intended to clarify for me if there is any way I can now take action to recover the remaining 1.3rd of the equity (£65-£80k).

Expert:  Clare replied 4 years ago.
Hi
I do understand what you are asking - but I also need to know if the original Financial Agreement was ever turned into a financial order which was sealed by the court
Claire
Customer: replied 4 years ago.


Am I right in thinking that this would typically have been part of the divorce process? (we used Divorce-Online).


 


 


 

Expert:  Clare replied 4 years ago.
Hi
No this would have been a separate stand alone Order - probably charged for separately as well
Claire
Customer: replied 4 years ago.


No. No court order. The financial agreement at that time was amicable, and no court order was necessary.


 

Expert:  Clare replied 4 years ago.
Hi
Just for clarity - I assume that you signed all the paperwork transferring the property into her sole name?
Is it still in her sole name?
Claire
Customer: replied 4 years ago.


Yes.

Expert:  Clare replied 4 years ago.
Hi
I am sorry but the news that I have to give you is not good.
Whilst you could try and challenge them on the basis that they clearly misled you as to their financial position the fact is that you did not ask for financial disclosure or evidence and accordingly it is unlikely that a court would set the agreement that you reached aside.
If you had not already remarried this woudl not be a major problem as you could have made an application to the court for the finances to be dealt with within the divorce proceedings - even after all this time - but your re marriage means that this can no longer be done
I am sorry that the news was not better please ask if you need further information
Claire

Clare, Solicitor
Category: Law
Satisfied Customers: 34478
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and 2 other Law Specialists are ready to help you
Customer: replied 4 years ago.


OK. Not great.

A further issue aspect and something I hoped not to have to mention - There is a 6 yr old. He was born while we were still married, and my name is on his brith certificate. However, I now seriously doubt that he is mine. I am looking at getting a home DNA test done.

I would imagine that this would change matters?

Expert:  Clare replied 4 years ago.
Hi
I am afraid I have still more bad news to give
Since you were married at the time of the birth you are presumed to be the father in any event.
Even if it turns out that you are not the biological father of the child there is still no action you can take to change the capital settlement - although you can stop paying maintenance once you have applied to the court for an order declaring that you are not the father of the child
Claire
Customer: replied 4 years ago.


And if I do have that order declared, would I have a case to attempt to reclaim the maintainence I have paid so far?

Customer: replied 4 years ago.


And if I do have that order declared, would I have a case to attempt to reclaim the maintainence I have paid so far?


 


An do I need her permission to undertake a home DNA test?

Expert:  Clare replied 4 years ago.
Hi
No I am afraid not.
There has been a recent case involving a reclaim of maintenance in similar circumstances - but in that case the parties were not married and sadly that will make the difference
Since at present you have Parental Responsibility for the child you can conduct the test if you wish
Claire
Customer: replied 4 years ago.


I spoke to the company who managed my divorce regarding the financial order. Apparently it was never filed due to non payment of fee by me. I believed it had been paid, but the sum was applied to the Dec. Absolute fee instead and the Order fee was left outstanding.

They have advised me that as such, the financial arrangements of the divorce were never finalised.


 


They have also mentioned that I could potentially stiil apply for ancilliary relief.

Expert:  Clare replied 4 years ago.
Hi
You could have done if you had not remarried - but sadly you no longer can
Claire
Customer: replied 4 years ago.


OK, Last question. Thank you for your help. I am very pleased with your service (even if I don't "like" the answer). I have left the best possible feedback.

The property was legally in joint names until the recent "deal" at which point I signed it over in full to her and received £55k (For presumablly what would have now been considered a 50% share, and worth approx £200k).


 


I accepted this sum solely based upon false (unverified) information regarding affordability.

Is it possible that this transaction can this be considered under contract law, irrespective of ancillary relief/remarriage issues.

Could the contract be challenged based upon her deception regarding affordability.

Customer: replied 4 years ago.

Last question on this matter.

Since no financial agreement ever came into effect, where does this leave our recent agreement?

Without the order in place, I would have been a joint owner of the property (not 1.3rd as per the order).

So, I have effectively sold a 50% share (circa) £200k, for £55k. I accepted this price solely on the basis that I was told it was not possible to pay more based upon affordability (She claimed could not lend more via mortgage, and could not afford any higher monthly payments).

I would not have contracted for that price without the deception. Is there any basis under which I can now seek to void the contract?

Expert:  Clare replied 4 years ago.
Hi
I am afraid that this goes back to what I said here
"Whilst you could try and challenge them on the basis that they clearly misled you as to their financial position the fact is that you did not ask for financial disclosure or evidence and accordingly it is unlikely that a court would set the agreement that you reached aside."
Claire
Customer: replied 4 years ago.


I have just been told that although the original order was not put into effect, since a prayer for ancillary relief was made in the original divorce documentation, remarriage does not restrict me and that I am able still able to seek an equitable financial arrangement.

This appears to differ from your replies. Your thoughts?

Expert:  Clare replied 4 years ago.
Hi
There has been a VERY recent case which has suggested that this MIGHT be possible - but in that case the property remained in joint names in this case that is not the case
However of course your ex may not be aware of these problems for you....
Claire