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Peter Collins
Peter Collins,
Category: Family Law
Satisfied Customers: 1732
Experience:  Barrister at Self Employed
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I am not happy with mr response. I need to ask anothwr

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I am not happy with mr smith response. I need to ask anothwr expert.

Hello, my name is***** am here to assist if I can. What was the question that you would like a more detailed response to?

Customer: replied 6 months ago.
The question is that i have a shared care order. The order states the child lives 6 nights out of 14 with her father. I stayed in the FMH as wife left 3 years ago. I am still paying the mortgage. My wife lives in a flat allocated by housing dept. She wants to sell. There is not enough equity in the property to rehouse both. I cannot buy her out. She cannot move in because she can not afford the mortgage. I do not earn enough to move out and continue to pay the mortgage. Can i apply for a mesher order?

Thanks for your clarification. I take it that you are not yet divorced, despite separation some time ago, in that case?

Customer: replied 6 months ago.
i am not divorced decree absolute will be granted after the apartment is sorted.

OK, this may seem like a strange quesiton but what does your wife hope to gain y forcing the sale if she cannot afford a mortgage in her own right and you are both adequately provided for under the current arrangement? Do you know why she wants the sale to go ahead?

Customer: replied 6 months ago.
She wants the money now, i suppose. She lives in a one bedroom appartment and says she needs 2 bedrooms

OK. And so the money would allow her to do this? Would it not then allow you to do the same?

Customer: replied 6 months ago.
She has asked the court to transfer the property in her name. It does not make sense then she wants to sell 65/35 in her favour. I would like to maintain the status quo until our child is finishes her education. Would a mesher order be a reasonable order to request?
Customer: replied 6 months ago.
She could rent a 2 bedroom flat but then all rhe housing benefits will be stopped. It does not make sense.

I was just trying to understand the bigger picture, apologies for all of the questions! A mesher order may be granted, if applied for, but there is no guarantee and the case was about providing for the primary carer (I appreciate you have shared care but your wife is still the parent with the majority of the care). It is theoretically possible though. Do you have a divorce solicitor? If so, what is their view?

Customer: replied 6 months ago.
My divorce solicitor says there is no chance that i will be forced to sell especially in this economic climate. The child also lives with me and needs two homes. She may live in a one bedroom flat but she left the home and took our daughter. The plan was to try and get me out of the house claiming false allegations of DV. The plan did not work. I am paying the mortgage and CSM. It could go either way. Mesher or the house sold.

This is a matter for your divorce solicitor to handle for you, as it is part of the divorce. Everything you say in defence of your position is reasonable, in my view.

Also, if you can take a moment to accept my answers and rate 4 or 5 stars I will be credited for assisting you with your question by the site. I can keep answering follow up questions free of charge. Many thanks!

Customer: replied 6 months ago.
My wife wants to come back to the flat and wants a mesher order. She says money will be tight. When the chikd turns 18 we will share 50/50 equity. She alsoproposes i stay in occupation for 5 years and then it will be 70/30 in her favour. What do you think?

I think that you wanted to ensure the property wasn't sold until your child turns 18, and this is an agreement to do that. Do the logistical arrangements work for you? What is the reasoning behind the 70/30 arrangement in 5 years time?

Customer: replied 6 months ago.
Because my wife says she will sacrifice another 5 years in a one bedroom flat with our daughter whilst i have the luxury of staying in the property. She wants 70percent to buy another property but in reality wants to buy me out as she is trying to avoid a sale.

OK, so I am just trying to get this absolutely right, is the proposal for a 50/50 split in the equity or a 70/30 split in the equity, and is the plan for you to remain there until it is sold upon your child reaching 18? Sorry to be pedantic, it's just I want to be very clear on what your proposal is!

Customer: replied 6 months ago.
Her offer is that i renaim 5 years in occupation until the child is 14 and then the house is sold or buy each other out. I will get 30 per cent equity. What do you think. Could the outcome be worse if it goes to final hearing i have 40 percent custody.
Customer: replied 6 months ago.
I am now 54 years old and my wife is 47. She says i do not need a 2 bedroom flat but she does.
Customer: replied 6 months ago.
She will not allow the mesher until child 18

The outcome can always be better/ worse, if a judge has to make the decision on your behalf. The question is, what position does her offer put you in? Would you be in a position to buy her out in 5 years time? Obviously a potential rise in property prices may mean there is a) more equity to play with (also bearing in mind 5 more years of the mortgage will have been paid off) but b) that if the agreement is for 70% to her, you would have to pay more. As you are paying the mortgage for the next 5 years, why not counter with 60/40 or 50/50 as you originally intended?

Customer: replied 6 months ago.
Thank you. That makes sense but my wife wiil not accept less than 70/30 otherwise she is determined to go to final hearing. I feel i should accept. I asked for 60/40 but refused. She wants 1st offer of refusal in 5 years time. She dies not want to sell. She wants to keep the property. Am i getting a fair deal?

I can't advise if it's fair, as only you know whether you can make that deal work. If it enables you to remain where you are and walk away at the end with enough to set yourself up again, with minimal disruption to your daughter, then perhaps these are the considerations you should be thinking about. There's also the caveat that circumstances can change, and an agreement that you make at this stage may not be the appropriate one in five years time, as who can realistically predict exactly where they will be in five years. It's ultimately your decision, and if it feels right, then accept it. If not, you have to contest.

Customer: replied 6 months ago.
Thank you Sir, very happy. I am very grateful.

My pleasure. Best wishes, Peter

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