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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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My friend is going through a divorce. He is in financial

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Hi, my friend is going through a divorce. He is in financial difficulty and is looking for a solicitor who would enter into a sears tooth agreement. Do you have any advice?
JA: What steps has your friend taken? Has he filed any papers in family court?
Customer: i dont think so
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county does your friend live in?
Customer: London, Kent
JA: Anything else you want the Lawyer to know before I connect you?
Customer: there is about £50K of equity in the property

Welcome to Just Answer.

I will be happy to assist with your question today. I need sometime to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

for background -

how long have they been together and married in total?

any children under 18?

and is the house going to be sold?

Customer: replied 23 days ago.
they have been together 14 years and married 12. Two children - boys, 5 and 4. She doesn't want to sell the house but there is £50K of equity in it.

Here is one firm (very well-respected) who go into detail about various funding agreements:

https://www.stowefamilylaw.co.uk/blog/2008/01/07/fees-legal-aid-and-everything-you-need-to-know-about-sears-tooth-agreements/

They would probably be a good start but don’t be at all surprised they know all about them but don’t do them.

As it says however, how many solicitors will accept it, “not too many”. Forget the risk, there is also the cash flow to worry about regardless of disbursements surveyors barristers fees.

I wouldn’t be at all surprised if you made 50 telephone calls without finding one.

There is not a lot of equity in the property and share is going to be GBP25,000 tops probably and at GBP250 an hour it soon going to eat right into the money which you would get from the property.

He can do an awful lot of this himself and save a shed load of money.

Provided that at least one of the people wishing to get divorced lives in England, then getting divorced in England (& Wales) is infinitely a do-it-yourself job. (I am not familiar with the system in Scotland)

Save yourself a whole load of money: the government website have a do-it-yourself guide

https://www.gov.uk/divorce

Although you can agree finances between you, it doesn’t draw a line under it unless you have a financial order

https://www.gov.uk/money-property-when-relationship-ends

And if have children under 18, and you cannot agree who they live with and who sees who and when, then you need a child arrangement order (which includes Specific Issue Orders:

To confirm that something can happen

and a Prohibited Steps Orders

To stop something happening

https://www.gov.uk/looking-after-children-divorce

In the United Kingdom, we do not have “irreconcilable differences”. That is a thing in the United States for the time being at least. The rules are changing here shortly to get rid of the following 5 grounds of divorce and to get rid of the fault issue but that has yet to be enacted. To be honest, in my opinion, it’s going to make very little difference because the big arguments are over finance and children not the actual divorce itself.

It doesn’t matter who divorces who or why, the financial issues are exactly the same. The court has not apportioned blame with regard to the division of marital finances for many years.

Grounds for getting divorced are:

1 The couple have lived part 2 years or more but less than 5 years and they both consent to the divorce.

2 The couple have lived apart for 5 years or more, regardless of whether they both consent or not.

3 Desertion. Not common.

4 Adultery. Very difficult to prove unless there is unequivocal evidence or an admission.

5 Unreasonable behaviour. Most common and relatively easily to put together a petition on these grounds. For example:

A spouse wants an unreasonable amount of sex/never once it.
Lack of personal hygiene/obsessive personal hygiene.

Obsessively tidy/extremely messy and untidy.

Gambles to excess/it’s tightfisted with money.

Never interacts with spouse or children/obsessive with children.

Violent or bullying or intimidating.

Excess alcohol.

Lots of grounds.

Please note that a legal separation is not the first step or precursor to a divorce. It is virtually the same process but it doesn't dissolve the marriage. However it draws a line under the relationship formally. The difference between a legal separation and divorce is basically that you cannot get remarried again. The reason you would have a legal separation, rather than a divorce is you can get divorced, for religious reasons for example.

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 are the notes from the government on how to apply for a financial order:

https://www.gov.uk/money-property-when-relationship-ends/apply-for-a-financial-order

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?).

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.

Unless a sale of the house produces enough money for the parent looking after the child(ren), the resident parent, until the youngest reaches 18 and produces a surplus for the non-resident parent, the sale of the house is not on the cards until the youngest child reaches 18.

Both parents are under a duty to provide a home for dependent children until they reach 18. Only then would the house be sold.

So I’m sorry to say that if she wants to stay in the property if she’s going to have the children, the chances that a sale is not in the cards for another 14 years.

There is a bit of good news, A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

I am happy to answer any specific points arising from this.

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

That only applies to new threads, not this one. You have me exclusively on this one.

Thank you.

Best wishes.

FES

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