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Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I have to apply decree absolute to complete my

Customer Question

Hi,
I have to apply for a decree absolute to complete my divorce. I have a separation agreement.
My ex and I have settled on the house and a lump sum has been paid to her over a year ago.
Over the last week I took my son (aged 11) to live with me because my ex became mentally ill and was detained in hospital. We also have a daughter together (aged 15) who has chosen to remain with her eldest sister aged 24.
I have filed an urgent C100 to the courts.
What is my position regarding completing my divorce. I would like a clean break but happy to pay maintenence to my ex if she needs support. I do not have a large pension or savings. What is she entitled to?
Can she claim disability maintenence from me as she may be unlikely to get a job for her life?
Can she back claim on the house now that the price of houses has increased since signing the seperation agreement?
I didn't get her signiture witnessed or file the seperation agreement with the courts, however she would never contest that she had signed the seperation agreement. Is this a problem?
Can I file for decree absoulte now and consent order second or should I do it at the same time?
Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is***** shall do my best to help you but I need some further information firstDid you issue the Petition?
Customer: replied 1 year ago.

I signed the seperation agreement whcih was witnessed. I issued her the seperation agreement which she signed in front of me

Expert:  Clare replied 1 year ago.
Hi
Did YOU issue the divorce petition or did your ex?
Clare
Customer: replied 1 year ago.

I signed as the petitioner and she signed as the respondant

Expert:  Clare replied 1 year ago.
When was the Decree Nisi granted?
Customer: replied 1 year ago.
6th September 2015
Expert:  Clare replied 1 year ago.
Hi
When was the Separation agreement signed and did she have legal advice beforehand?
Clare
Customer: replied 1 year ago.
It was signed April 2014 and she had legal advice beforehand. Her solicitor did say that they thought it was not a good agreement for their client but we negotiated and agreed and she signed.
Expert:  Clare replied 1 year ago.
How much is the house worth and how much is outstanding on the mortgage and how much did you pay her?What is her current housing position and what income do you each have?
Customer: replied 1 year ago.
Outstanding on the mortgage £130,000, , at point of transfer to me it was valued at 235,000 outstanding mortgage of 138,000, loans over the years outstanding were £50,000 for modernising and refurbishing house, cost of sale was estimated at £12,0000 which left equity of £35,000. She does not have a job and is currently detained under the mental health act, she has not worked. I paid her 70% of £35,000 which came to £24,500. I have been paying her 20% of my salary which was £4,000 per month net giving her 800/month. Since then the value of the house has increased to £290,000, I have met someone with two children that does not work and I am supporting her and her two children aged 10 and 8 and I will probably have full parental responsibility for my son and possibly my daughter aged 15. She is on benefits renting a house.
Expert:  Clare replied 1 year ago.
Were the loans you refer to secured on the property?
Customer: replied 1 year ago.
No. They were loans from my mother made specifically for home improvements and made
me sign a contract to state that if the house was sold or transferred all loans would have to be paid in full immediately. These improvements were lead by my ex. Windows/kitchen/garden/redecoration/furniture.
Expert:  Clare replied 1 year ago.
Hi
from what you have said it is Clear that the Separation agreement was never likely to have been accepted by the Court even before your ex's illness
You shoudl file for the Decree Absolute as soon as possible.
It woudl be unwise to try for a Consent Order whilst your ex is still mentally unwell as it could be reversed at any time in the future
better to wait and hope that you ex does not make a claim
If she does then a further lump sum is possible, as well as ongoing maintenance in the event that her benefit entitlement does not meet her reasonable need
I hope that this is of assistance - please ask if you need further details
Clare
Clare and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.

Are you suggesting to wait indefinitely? At what point is the threat of her taking legal action no longer a concern? What if I get inheritance in the future. Can she still make claims after we are divorced?

Customer: replied 1 year ago.
My new partner and I want to buy a house together. Can my ex claim against any future gains I make? What if I had an inheritance is this also at risk? How exactly is the split calculated if a
Claim was made in the future?
Expert:  Clare replied 1 year ago.
Hi
Well you could reconsider things when she is mentally well and consider an application then - but frankly the longer she does not claim the better it is for you,
A future Inheritance is unlikely to be touched - but your share of the house could be at risk - to the extent that it is funded by the sale of the former matrimonial home.
Any future claim will look at her needs and your assets but the passage of time and the fact that she did receive a lump sum will reduce the amount at risk
Clare
Customer: replied 1 year ago.

Ok. My intention is to remortgage the house in order to invest in a new house for me to live in. This would reduce the equity to a smaller amount. The deposit for the new house would come from the sale of my new partners house. But she is concerned about getting involved in buying houses together if my ex. wife could make a claim against her investment.

Expert:  Clare replied 1 year ago.
Hi
The risk is a small one - and if you are retaining the former matrimonial home then the new property us unlikely to be at risk at all.
Clare
Customer: replied 1 year ago.
I just got a message from my ex. I owed her £9000 to complete the offer. Is there a way I can pay it to her and get her to sign a clean break order or does everything have to be endorsed through the courts. I don't want to go down the lines of bank statements, savings and pensions if I can help it.
Expert:  Clare replied 1 year ago.
Why do you owe her £9,000?
Customer: replied 1 year ago.
I had to pay 24,000, it was agreed that I pay 15,000 now and 9,000 when she asked. I asked for some notice. But she has asked for it immediately and paid to her mums account. I guess so she can get legal representation against me for custody of the children.
Expert:  Clare replied 1 year ago.
That simply makes the situation worse and certainly does not change my advice
Customer: replied 1 year ago.
So should I ask her to sign anything to say she has received it and that this is a final settlement. Is that likely to carry any weight if she did try to get more money in the future? If the house was sold in the future is the current value assessed or the value at the origanal settlement? If I give her £9,000 she is likely to use it to take me to court. But I don't think she is thinking about going for more money, it's about the children.
Expert:  Clare replied 1 year ago.
You can certainly ask this how effective it would be is doubtful
Customer: replied 1 year ago.
My understanding from friends who got divorced is that the couple agree and the court signs. Are you saying the only way to have a clean break is the court deciding?
What about the amount? If I win the lottery can she claim half of she is struggling?
Expert:  Clare replied 1 year ago.
The Court will only seal a clean break order if the Judge thinks it is fair - in your case this is unlikelyHad you been more generous with the capital settlement then of course that would have been differentShe would not get half of a lottery win
Customer: replied 1 year ago.
But you haven't said about the raise of value of the house. How this is likely to be considered?
Expert:  Clare replied 1 year ago.
It is impossible to say since it will depend on your respective financial positions as and when she makes an application.