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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 26387
Experience:  Senior Partner at Berkson Wallace
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I need some legal advice on my 50 percent share after my

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Good morning, I need some legal advice on my 50 percent share after my divorce
JA: What are the assets involved here? Are there any minor children?
Customer: The assets are a property and two daughters, the first daughter is going to be 18 yrs old in 3months and the second is 15yrs old
JA: Were any marital funds used for the mortgage or property improvements?
Customer: What is marital funds?
JA: The Family Lawyer will be able to walk you through that. Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: The property is half on mortgage

Hello. Thank you for the question. It is my pleasure to assist your with this today.
I have been in the legal profession, in high street practice, for 30 years so I have wide range of experience in a great many different aspects of law.
Please bear with me and I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Do you mean as in financial settlement?

how long were you together and married in total?

and what is your preferred outcome if possible?

Stuart J and other Family Law Specialists are ready to help you
Customer: replied 6 days ago.
thank you

I see that you have requested a telephone call. Are you available now?

Customer: replied 6 days ago.
I am available

What will happen with regard to the division of marital finances is that everything will be lumped in together including pensions. With regard to pensions you will need a Cash Equivalent Transfer Value (CETV) which converts the pension to a lump sum for the mathematical calculation. You cannot get hold of that money but it converts it to a theoretical cash equivalent.

All the value of the assets are then lumped together and there is a division which starts off at 50-50 and it would then be adjusted in favour of one spouse or the other spouse depending on the needs of the parties, how long they have been married, where the money came from, et cetera et cetera.

Not just the length of the marriage would be taken into account but also any length of time together before marriage because it would be unfair if the couple were together for 29 years and only married for one year before splitting up (not uncommon) to be treated in the same way as a couple who had a whirlwind romance got married, were married for 12 months, and then split up. So the whole length of the relationship would be taken into account.

It’s largely a mathematical thing but does look at needs after divorce.

Even if everything is being divided down the middle, it’s not really a case of dividing it down the middle, all the assets wouldn’t be split 50-50 but, for example one person may keep the house and the other for example could have the savings and the pensions.

You have dependent children so if you are agreeing that you can have 50%, then it’s not going to happen until the youngest child reaches 18.

If your wife will not agree to sell the property at that stage then you have to make an application to court for an order for sale.

No one can be compelled to continue to own/have money in a property which they no longer wish to own ( or in which they have a financial interest but not named on the deeds) and they are able to force a sale through the courts if necessary.

The remedy is to make an application to court for an order for sale under section 14 of the Trusts of Land Appointment of Trustees Act (the Act).

Anyone wishing to sell may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually having the need to get to court.

Check house insurance to see if there is legal expenses cover that would pay for the legal cost of taking the matter to court.

The wording of the application is along the following lines:

Therefore the claimant makes a claim pursuant to s.14 Trusts and Land and Appointment of Trustees Act 1966 (TOLATA) pursuant to Part 8, for the following

i A declaration that the Claimant and Defendant are 50:50 beneficial owners of the property, (or whatever percentage a claimant is looking at depending on whether there is a declaration of trust, it’s tenants in common in different shares or depending on any financial input into the property if the property is only one name.)

ii That the property be sold:

iii That there be an adjustment of the financial shares to account for the additional money spent by the Claimant in respect of (for example) repairs, improvements, the council tax, electricity and occupation rent for the period of time the Defendant has enjoyed sole use of the Property.

iiii Costs

If I were advising anyone who has received a letter threatening an application to court under the Act and an application for legal costs, I would tell them to get the agents sign up immediately and cooperate with the sale because if they make the court application, they are likely to get it and they are likely to get costs awarded against them.

It is often the case that a robustly worded letter from a/your solicitor threatening a court application and an application for costs, may resolve the issue without the need to go as far as court.

On your house insurance you may have legal expenses cover that would pay for the legal cost so it’s worthwhile checking. Some do and some don't.

HOWEVER this should all be dealt with as part of an application for a financial order within the divorce proceedings.

As part of the divorce process, to draw a line under the finances you will need a financial order.

The courts will not get involved in marital finances unless divorce or legal separation proceedings have started.

Remember that the divorce itself is not that expensive, if you use solicitors, it is arguing over money and children which costs the big bucks.

And here is some reading on applying for a financial order.

https://www.lawteacher.net/cases/financial-matters-on-divorce.php

Which draws a line under the finances of the marriage and prevents either of you coming back to the other, in some years time, asking for more money if circumstances have changed (the lottery?).

That’s what happened here when the spouse popped out of the woodwork years after the divorce, when there was no financial order.

https://www.dailymail.co.uk/news/article-3634949/Victory-hippy-millionaire-s-unemployed-ex-wife-wins-500-000-share-fortune-money-decade-broke-up.html

and here

https://www.dailymail.co.uk/news/article-1331925/Lottery-winner-Nigel-Page-pay-ex-wife-2m-left-10-years-ago.html

You can agree what you like between you, then it really is a case of putting the application into the court and the judge will rubberstamp the arrangements you have agreed. Otherwise it’s a potentially expensive argument.

Here are some notes from the government

https://www.gov.uk/government/publications/i-want-to-apply-for-a-financial-order-d190

On applying for a financial order

This is the form you need to start the process: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/885814/form-a-eng.pdf

And how you go on from there depends on whether you agree with what is happening with the finance or whether you are going to have an argument.

Thank you for letting me assist you with your legal question. I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Stuart