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Harris
Harris, Law Specialist
Category: Law
Satisfied Customers: 2546
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My wife left me 8 months ago apparently man. I

Customer Question

My wife left me 8 months ago apparently for another man. I believe she was cheating on me behind my back before she left, I would like a divorce. I also would like her name off the mortgage. Ive had my shared ownership flat for 10 years, I've always paid the mortgage during that time and I'm managing now on my own just fine. I would like to know how to proceed with the divorce and the mortgage. We have no children. Our remaining finances are separated and sorted already. Many thanks.
Submitted: 1 year ago.
Category: Law
Expert:  Harris replied 1 year ago.
Hi, thanks for your question. You will be able to pursue an application for divorce under either the fact of unreasonable behaviour or adultery. If you pursue under the fact of adultery you will need her to sign confirmation that she has committed adultery. It therefore may be more straightforward to rely on unreasonable behaviour and state that she is now with a new partner and any other issues of unreasonable behaviour exhibited during the marriage. In relation to the property, as it is in joint names she will have a legal interest to the property. If it was the former matrimonial home (where you lived as husband and wife) then she will also have matrimonial home rights which allow her the right to occupy the property. You can pursue negotiations to settle the financial matter and she will likely to seek to be compensated for her interest in the home (both her legal interest and matrimonial interest). If an agreement has been reached, either directly, through solicitors or through mediation, then this needs to be made into a consent order which outlines the specific agreement and the conditions. This consent order is then submitted to the court, together with details of each of your financial positions under a form D81 and a judge will consider the agreement, each of your financial positions and whether the agreement is fair for both of you. The court's starting position would be a 50-50 split of all assets, and the following criteria will be considered to depart from an equal split: 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 provide a positive rating if you found this information helpful. I will not be credited with answering this question without a positive rating. Thank you
Harris, Law Specialist
Category: Law
Satisfied Customers: 2546
Experience: Family Law - Specialist in Divorce, Financial Relief and Children Matters
Harris and other Law Specialists are ready to help you
Customer: replied 1 year ago.
How can I contact her with knowing her address. And will shared ownership cause a problem
Expert:  Harris replied 1 year ago.
You will need to find a way to contact her (eg. email, social media, through friends etc) as you will need to include an address for her on the divorce petition so that she is served with it. If none of the above help, you will need to use a tracing agent to find her address, for example here: http://www.traceadebt.com/ Having a shared ownership property will not cause issues regarding the financial settlement as you both have a legal interest regarding a share of the property, and that share will be the asset.
Customer: replied 1 year ago.
If these goes to court could I get the flat because of her infidelity
Expert:  Harris replied 1 year ago.
Unfortunately the court does not consider the facts of the divorce when deciding the financial settlement , unless there has been financial misconduct by the other party. The criteria the court considers as listed above.
Customer: replied 1 year ago.
Not even if I've always paid the mortgage too?
Expert:  Harris replied 1 year ago.
The contributions towards the property will be taken into account. But you paying the mortgage solely will not entitle you to the full asset - any other contributions will also be taken into account, such as non-financial contributions or if she funded other outgoings or expenses.
Customer: replied 1 year ago.
Can I buy her out? And does it have to go to court to settle
Expert:  Harris replied 1 year ago.
Yes - you can offer to buy her out in return for her transferring her legal and beneficial interests in the property. You will also need to make enquiries with the mortgage company to see if they will agree to take her name off the mortgage - they will need to ensure that you are able to afford to solely take the mortgage on based on your financial circumstances. The court will have to approve a financial agreement, but if this is all agreed and a consent order is prepared this can all be submitted and a judge can decide on it based on the documents. You will only need to attend court if there is no agreement and the matter is contested.
Customer: replied 1 year ago.
Transferring her legal benefits where? Ive always paid the mortgage from day one can my lender still refuse?
Expert:  Harris replied 1 year ago.
It is for the lender to carry out affordability checks based on your income and outgoings. If they do not think you can meet these now and during the term of the mortgage they are likely to refuse to take her off the mortgage, even in the event that you both agree. This is because for them it is better to have both of you they can pursue in case there are arrears or failure to pay the mortgage. In the event that they refuse to agree to take her name off the mortgage you will not be able to transfer legal title to your sole name and therefore as part of the consent order the property will need to be apportioned as a 0% interest for her and a 100% interest for you which will be relied on upon sale of the property in the future. Her legal interest (what is on the title deed) can be transferred to your sole name if the mortgage company agree to take her name off, if the mortgage cannot be transferred to your sole name then the procedure above needs to be followed). Her beneficial interest (her rights to the property arising out of the marriage) can be signed away as part of the consent order.
Customer: replied 1 year ago.
So how do I proceed with things now. Divorce 1st then sort out mortgage or sort out mortgage 1st then divorce or all at the same time? Could you send me a step by step guide of what I need to do?
Expert:  Harris replied 1 year ago.
You should first find out her address and then pursue a divorce under this form and a £410 court fee - http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d008-eng.pdf Once it is served on her, I would suggest you make a referral to an independent mediator who will assist you both face to face in reaching an agreement regarding the finances. You can find local mediators here: familymediationcouncil.org.uk Once an agreement has been reached I would highly suggest you instruct a family law solicitor who will turn the agreement into a consent order to protect your rights and position, as well as future position with a possible clean break. The money you spend on this will pay off in the end as the consent order is a very technical and legal document and you need to leave no room for there to be future claims against you from her.
Customer: replied 1 year ago.
Will I have to pay £410 for the divorce papers or my ex wife.
Expert:  Harris replied 1 year ago.
Yes - £410 is the court fee for a divorce. You can apply for her to pay the costs of the divorce (you need to tick the costs box on the last page of the divorce petition and then apply for costs when applying for the Decree Nisi.
Customer: replied 1 year ago.
How much will all this cost?
£410 for court fee
A mediator
Family law solicitor
I don't have any money.
Expert:  Harris replied 1 year ago.
The minimum costs you will have to incur are the court fee of £410 and the mediation information session which varies between £100-150 depending on the mediator. You are able to represent yourself throughout any proceedings. I appreciate that this may be expensive at the outset, however, these costs will ensure that your interests are protected by receiving professional legal advice and representation.
Customer: replied 1 year ago.
At the mediation session will all finances have to be declared or discussed including inheritance money. Reason I ask is my x wife is getting some money from the late grandparents. This 'will' I believe has included me, since at the time we where together when gran was alive. She died a month ago. I'm I entitled or be included to this claim some of this money?
Expert:  Harris replied 1 year ago.
Yes, you both have to give full and frank disclosure otherwise, if an order is made or approved by the court and it is later found that there has been dishonesty or concealment, there is cause to return the matter to court to discharge the order and review it. Inheritance is not an automatic matrimonial asset. If your needs and her needs can be met from the matrimonial assets then you cannot claim against her inheritance. If needs cannot be met from the matrimonial assets then her inheritance will need to be considered.

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