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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10660
Experience:  30 years as a practising solicitor.
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Hey there, my friend is going through divorce proceedings in

Customer Question

Hey there, my friend is going through divorce proceedings in Scotland. She has been married for 15 years, has 2 children aged 14 and 12. Her husband earns £67,500 plus a generous expenses package. He is a bully and very controlling about money. She earns £36,000 and can afford the £80,000 mortgage on her own. Her husband is now alienated from his eldest child, so my friend covers 75% of the childcare. The biggest problem is that she has toxic debt, she had £17,000 at the date of separation and it spiralled out of control, so she was forced to sign up to a Debt Arrangement Scheme. He encouraged her to take on debt, while putting away substantial savings for himself, he wouldn't even let her have the Child Benefit, when she was the primary carer. This now means she can not get a transfer of their joint mortgage to her name only, or that she can get a mortgage at all, for many years now. The stress of all this has made her ill, she was finally diagnosed with Rheumatoid Arthritis last August. Her husband is wealthy and wants her out of the house and says because of the Scots Law emphasis on a clean break, no court will stop him. They live in a small village, so the rental options are limited and at least £400 more per month than her mortgage. Her solicitor is nervous and negative. Her son wants to testify that he and his brother should be allowed to stay in the matrimonial home till they are 18. So, she wants to force her husband to stay on the joint mortgage for 6 years. A financial advisor has told us, that a minute agreement with her father as guarantor would indemnify him from any cost and there will be no default on his credit rating. What kind of chance does she have if she takes him to court?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

This question can't be answered in isolation I'm afraid as the law is that all matrimonial property and matrimonial debts, which amounts to everything acquired or spend during the marriage, have to be divided fairly between the parties. That means that he has to share the debt as at the date of separation and all assets have to be accounted for in connection with the separation.

For example do either of them have occupational pensions? Have their SERPS pensions been valued? Are there any savings or other assets, such as shares or investments or life policies?

The division of assets and liabilities will be dependent on all of these factors. He will also have to pay child support. He may also have to pay maintenance to her as he earns a lot more.

The court does have the power, for example, to make him pay the mortgage payments for the next five or six years and to delay a settlement based on the sale of the house. This is rarely a good idea in practice. It would be better if she could, as part of an overall settlement, take title to the house and get a new mortgage if her father is prepared to guarantee the new mortgage. There would appear to be no reason why she would want to remain on a title and in a mortgage with her husband.

These are some of the issues she should be thinking about. An important point is that you raise is about her solicitor. There is no point in instructing a solicitor that she does not have confidence in. The solicitor should be able to think "out of the box" and come up with solutions and alternatives. If the solicitor does not appear capable of this then get a new solicitor.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

Hi there, Thank you for your response.


This is very important to us, so just to clarify - she is more than able to pay her mortgage, he will pay nothing. Her father would also guarantee that.


The main point is, because of her toxic debt that was £17,000 at the time of separation, that spiralled and led her to a DAS, she cannot get a mortgage from any lender.


In contrast, he has substantial savings and twice her salary plus good expenses.


So, in those circumstances, could you give advice about the likelihood of a Sheriff making him stay on the joint mortgage for 6 years, till their youngest is 18.


As she is ill with Rheumatoid Arthritis, might the sheriff give her 3 years?


Because their future prospects are so different, like a see saw, he goes up, she goes down.


 

Expert:  JGM replied 2 years ago.
The sheriff is more likely to order a sale of the house. She would be better to try to get a written agreement with her husband.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10660
Experience: 30 years as a practising solicitor.
JGM and 2 other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.
Does she not have a chance, as she is ill and her Rheumatoid arthritis is stress related, and her eldest child of 14 wants them to stay in the house, and is prepared to testify. The husband is loaded, and can get a large mortgage easily. Is there any chance she could win the right to stay in the house?
Expert:  JGM replied 2 years ago.
The court would not order the husband to stay on the title and the mortgage as that may restrict his ability to get another mortgage and this buy another house.

Th court is more likely to order a sale or alternatively order transfer of the title and a periodical allowance to cover the mortgage payments. And as her father is prepared to guarantee the mortgage anyway there should be no reason why this wouldn't work.

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