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plclegal, Barrister
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Experience:  Barrister at law
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PLCLEGAL Hope you are well. I have a few more questions

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Hi Peter
Hope you are well.
I have a few more questions regarding my situation of a financial agreement with my wife.
Will the money I put into getting our first house be taken into consideration in the settlement, considering I put in 34k to get a deposit and this was before we were married? This was over 10 years ago bit enabled us to get on the ladder as was an inheritance from my mum.
My ex wife wants to get a settlement figure now in pounds rather than percentages and attempt to buy me out over time without allowing for inflation etc,is this acceptable considering I won’t gain anything from increased equity and rise in house prices?
She is trying to push for a 60/40 split from the start and thinks she may be entitled to a 70/30 split.
I also don’t agree with the house valuations that she has got as she has undersold it to the estate agents who were only able to do ‘virtual’ viewings. My percentage split will be based upon these valuations which feels wrong. We are going into joint mediation on Wednesday but would be good to know the legal position before that.
Further guidance would be welcome
Many thanks

Hello and thank you for requesting that I look at this for you. The system alerted me to your request for my help.

I will not be able to respond in full until later on today, as I am not officially working today and have family commitments. I hope that you don't mind waiting for a response until this evening, when you will have my full attention.

Thanks for your understanding, Peter

Customer: replied 14 days ago.
Of course no problem
Thanks for getting back to me

Thank you for your patience.

As regards ***** ***** of the first property, if you put in a significant deposit, this would hopefully have been protected by a deed of trust or agreement of a similar nature. If it was not, it leaves you in a vulnerable position given that you were joint owners of the property, as the presumption with a jointly owned property (under joint tenancy rather than tenants in common, where shares are specified as a percentage) is that you both legally own the whole of the property in equal shares. This means that the deposit, if not protected, is effectively swallowed up in to the joint pot. It's possible in a non-marital dispute to make equitable arguments about the deposit amount to try and ring fence it before a settlement is agreed, but when you then marry, without any protection over the deposit on the family home it will perhaps be difficult to argue that the despot amount is effectively yours alone.

Agreeing a settlement in terms of a cash sum rather than a percentage is sensible if you are being bought out, but not if you are agreeing a Mesher order.

As to the house valuation, you can insist on a surveyor's valuation rather than estate agents virtual valuations, in order to get a true price. There is a fee for this type of report of a few hundred pounds, but its probably worth the spend to get the right price for the sake of the agreement.

I hope that this helps.

Do remember that I can only give you my opinion.

Another lawyer may have a different opinion. Litigation needs at least 2 parties and neither goes to court expecting to lose.

Nonetheless, one of them does, even though they have been told by their respective legal advisers that they have a good chance of success.

If there was a black-and-white answer to every legal problem there would be no need for anything to ever proceed to court!

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 PLCLEGAL only”.

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

Thank you.

Take care and stay safe.

Customer: replied 13 days ago.
Thanks Peter
Will reply more In full later
Have family commitments today but all very helpful
Many thanks

My pleasure. Thank you again for visiting JustAnswer, please do let me know if you have any additional questions in the future. I am also happy to answer any new questions on other topics that you may have, you can request me by putting “for PLCLEGAL” at the start of the new thread. Best wishes, Peter

Customer: replied 12 days ago.
Hi Peter
Many thanks for your help. That is good advice about the valuation.
I didn’t have my deposit protected so I guess I have to accept that is swallowed up.
I would also like to know if my ex wife could take a share of my business? I have a limited company and I am a director. There are no assets in the company but could she argue that she is owed something in this financial settlement? I’m not sure what my business net worth is for example. I’m trying to find a fair buy out solution as my wife is not keen on dealing with a percentage equity arrangement and a mesher model.
Many thanks

In general the court would want to keep your business asset separate from the marital assets - you rely own this for your income and it's not a marital asset per se.

As long as it is not a joint business, this is.

However, the value of the business may effect your claim on the property, depending on its worth.

Customer: replied 11 days ago.
Thanks peter
Helpful as ever. Another question I have is this.
I think I would like to proceed with buying the house that I have made my offer on. I don't think that my financial situation will be resolved quickly with my wife and yet I need to come off the mortgage in order to pursue buying this house. What legal safeguarding can I put in place if I were to come off the joint mortgage now and yet still have a foothold in the financial split of our joint assets? For example, could I now come off the joint mortgage and still be able to negotiate a financial settlement with my wife after purchasing the new house and come out with a reasonable outcome or would it weaken my position if I were to show the courts that I could provide a home for myself and my children without a financial settlement? We are still to get divorced. My thinking now is that if I can get a reasonable settlement from my wife I would prefer to take this now rather than wait for 12 years or endure an alternative protracted buy out solution even if it means taking less equity. I would prefer a clean break now as anything else feels too messy
Best wishes

It's actually very difficult to advise on specifics, given that we only have a very brief overview of your situation here.

It would really need you to sit down with a lawyer and the form E's (if filed) to go through what would be a reasonable outcome.

If there is a deal to be done, you would draft this into a separation agreement. Though this type of agreement is not totally binding on the judge in a divorce, if you have both taken legal advice on the contents of it there is no good reason a judge won't uphold it, providing it is fair to both of you.

I hope that this helps. We can discuss further and more bespoke assistance, of course, but that would be outside this platform obviously.

Thank you again for visiting JustAnswer, please do let me know if you have any additional questions in the future. I am also happy to answer any new questions on other topics that you may have, you can request me by putting “for PLCLEGAL” at the start of the new thread. Best wishes, Peter

Customer: replied 11 days ago.
Thanks Peter
Yes that is helpful. As I understand it, there may be an option of the mediator drafting a separation agreement for us that could be signed off or approved by the judge,is this correct? This could be done before I come off the mortgage which would give hopefully a legally binding contract and enable me to buy the house that I want now instead of staying in rental accommodation. I would like to agree with my wife a 50/50 split of the child custody, is this something that can be arranged through mediation or does this have to go through the courts? Do you think it will weaken my position to negotiate a fair settlement if I have already found and bought a house for myself and the children bearing in mind my wife will remain in a 4 bedroom house for her and the two children? Do the courts favour a clean break now rather than a Mesher order?
Best wishes

The courts will always favour a clean break, if its possible. The mesher order option comes into play where it is not possible.

A mediation agreement is a good template, but not legally binding and less useful than a separation agreement as mediators do not give legal advice. To sign a separation agreement you have to have had legal advice, which gives it more weight.

As to contact, this can be done through mediation without the court's involvement.

If you come off the mortgage, buy your house and do all of this without a signed agreement, then yes you weaken your position in terms of the settlement.

Your needs will be met by the house you own. Your wife will manage the family home mortgage on her own. As you are not tied to the mortgage there, and don't need it to live in, then your claim on the asset is weakened as a result.

I hope that clarifies.

Customer: replied 11 days ago.
How do I go about getting a legally binding separation agreement please? Do I have to employ a solicitor? What kind of costs am I looking at to get an agreement?

As I said its as legally binding an agreement as you can have, in the cirtcumstances. It';s certainly much more effective than a mediation agreement, but it may of course still be the case that you need to attend mediation to come up with the terms of the the agreed settlement.

A solicitor or barrister can draft the agreement for you, for a standard agreement it would normally take me 2-3 hours (obviously depending on complexity this could be more) to take instructions and complete a draft so the cost should simply be an hourly rate.

Customer: replied 11 days ago.
Ok many thanks
As I have been dealing with you can you let me know your hourly rate please if you would be prepared to take it on?
Best wishes

Of course, I can offer email contact to discuss, I can't put my hourly rate on here though! I'll submit the offer above.

Customer: replied 11 days ago.
Ok understood.
Please email me at***@******.***
Many thanks

Of course - happy to do so.

Customer: replied 10 days ago.
Also Peter
Can I come off the mortgage and still have a mesher agreement or do I have to stay on the joint mortgage? Hoping I can come off?!

A mesher type agreement would have you remain on the mortgage, normally, but if it is possible for you to come off, then your interest would be simply registered as a charge on the property.

I'll email you shortly, apologies, it's been a very busy day!

Customer: replied 10 days ago.
No problem
Many thanks
Yes I need to come off it but still keep my equity in somehow!

Absolutely. Email on the way.

Customer: replied 10 days ago.
Hi Peter
Final question before I go into mediation at 10am. Would securing a mesher type agreement give me a watertight equity percentage in the property? What if my wife does extensive repairs,changes to the house etc that affects it’s worth over the next 12 years both negatively and positively how does that affect my final payment?

A court order is pretty watertight.

There would have to be a significant change in circumstances in order to depart from the contents, and so minor alterations etc would not affect this.

Even extensive repairs won't really have that a significant impact in the house price.

However, for housekeeping purposes, you could commission a surveyor's report on the house, it's condition and it's value at today's date, and then in the event of a dispute a similar report can be commissioned at the date of sale, which can address any discrepancies/ increases in value due to additional works, if this is going to be an issue.

That way the question of increase in value due to alterations is dealt with by a specialist.

Customer: replied 10 days ago.
Great stuff!
Thanks so much for a quick answer
Much appreciated
Customer: replied 10 days ago.
Hi Peter
Just finished mediation now.
I’ve been absolutely thrown by the value of my business being 100k and it then affecting my equity release. After mediation with them taking into account my business value I have come out with a tiny percentage of equity. And yet my business is me. I am an artist,I can’t sell anything to anyone and I own no assets. I have 6k in the bank and if I stop painting there is nothing to sell.
How can my business be accurately valued therefore? The accountant came up with the sum of 3 times my net worth to get 100k but did mention it is open to goodwill when it comes to selling and valuing it.Any suggestions gratefully received.

I would dispute the value of the business, certainly.

A business only has a net worth if it can be bought/ sold.

Are you not actually a sole trader in that respect?

Customer: replied 10 days ago.
I have a limited company that I created after being a sole trader but I could easily go back to being a sole trader if that was necessary. The business absolutely cannot be sold to anyone as the client base comes from a gallery who sells my work for me at 50% commission. Without me producing the work there is nothing to sell to anyone.

I would suggest you go back to your accountant and work out the best approach - as I don't believe the valuation is helpful or accurate in the circumstances.

The other point is, of course, that your work is not a marital asset. It's your source of income.

Customer: replied 10 days ago.
Many thanks
I have also asked for 50/50 custody of the children which my ex has had a very negative reaction too and threatend a court battle over which I’m not sure I can face. Currently it is a 60/40 split. Feels more important to get the finances sorted out of a lengthy court battle. Would you suggest the same?

60/40 is pretty good, to be fair, you may conversely end up with less time if it goes through the courts.

I'd agree that tackling both issues at the same time is perhaps not in your best interests. Far better to put the financial arrangements to bed before arguing in court for 50/50 instead of 60/40.

Customer: replied 9 days ago.
good advice
Many thanks

Happy to help.

Customer: replied 9 days ago.
My accountant has valued my business as zero thank goodness. All that’s left to do is decide now a fair equity split of the house and shared assets. It should start at 50/50 correct or is it in the mother’s favour I’m any way? We are having mediation again on the 9th March.should we come to an agreement about the finances then and the mediators draft something up,how quickly would it take for you to assess it and do the legal bit please?
I’m also presuming you could act on my behalf and review the financial settlement or am I missing something here?
Many thanks
Customer: replied 9 days ago.
Would be good to know how long it would take bearing in mind I need to come off the mortgage by June which is when my new mortgage offer runs out

That's good news - and as I would have expected.

You start at 50/50, the departure form this is on the basis of needs, not a mother/ father bias. Obviously, making a generalisation, historically mothers did not work and fathers were breadwinners, so there is still a perception that mothers will automatically get more. It's not the case.

I can turn around drafts in 7 days normally.

Yes I can advise you as part of the service.

Submitting a draft to the court can be done as soon as you are agreed.

How long it will take the court to turn this into a final order will depend on court delays, but if you have submitted a draft consent order after taking legal advice you should be pretty safe, if all seems fair on paper. Obviously no guarantees, just an assessment of risk.

Customer: replied 9 days ago.
Thanks Peter
That’s helpful and all good to know.
And no big concern or adverse effect with you being in France or anticipated delays anymore than usual?
Can you just let me know the process please
Do we get an agreement from the mediators and then send that to you for you to revise? Is there usually much back and forth
Some detail here would be helpful
Many thanks

Of course - there's no delay from my end as I work completely online for drafting and paperwork.

The process is quite straightforward:

1. Mediation agreement;

2. D81 statement of information (assets and liabilities) to be completed in draft form;

3. Both sent to me for review;

4. Feedback and questions from me;

5. Draft order prepared to submit to the court;

6. Confirmation that you are happy with the contents.

Essentially that's the process. Steps 3-6 can be done within 7 days. I hope that helps.

Customer: replied 9 days ago.
Thanks Peter
All seems very straightforward.
Is there a fee for instructing you or just the hourly rate that you mentioned?
Do you review both mine and my wife’s forms and agreement,as in does she also have to use you or does she get her own solicitor and they do effectively the same as you? Are there 2 lots of forms/orders that get sent to the courts?Sorry,I’m unfamiliar with this process you’ll have to excuse my ignorance on this!
Is there also a fee to pay the courts presumably as well as you?

You submit a form D81 jointly. I work just on an hourly rate, there's no fee to instruct.

Only one set of court forms and a court order is submitted - there are not two competing versions of the same thing.

You both have to approve the draft.

The financial order application costs £255.

I hope that clarifies.

Customer: replied 9 days ago.
That’s great for now
Will be in touch when we have got a bit further along the line
Thanks Peter

Happy to help. You have my details - as and when needed. Best wishes.

Customer: replied 4 days ago.
Hi Peter
Hope you’re well.
We’re getting somewhere with mediation but can’t decide if I need an instructed solicitor to fight my corner for me whilst going through mediation. I’ve been given some sound legal advice so far from you and other solicitors without instruction and understand that I need one to draft the legal side of things. When would you advise me to get a solicitor? Am I putting myself in a vulnerable position without one or can I rely on the mediators and my own sense of what is fair to come to the agreement prior to paying a solicitor?
Help appreciated when you can
Many thanks
Customer: replied 4 days ago.
Basically I am trying to save money ahead of moving house and I’m wondering if I can avoid the expensive legal fees or if that is foolish considering my situation and possible unfair deal offered by my wife

I understand. You should not need a solicitor for a successful mediation.

You should, however, be clear that you will need to seek independent legal advice on the contents of any draft agreement before agreeing to sign off on it - just as you would prior to agreeing the contents of the draft consent order.

I hope that this helps. Best wishes.

plclegal and other Law Specialists are ready to help you
Customer: replied 3 days ago.
Many thanks Peter for all your help. I have actually bitten the bullet and decided with everything going on that I needed to instruct a solicitor at this stage. It’s all just been a very steep learning curve and I am in constant fear of doing the wrong thing so really needed someone to advise me specifically on the contents of my case whilst going through mediation.Thank you once again for all the very constructive help you have given me up to date,I have found it essential and has guided me through this difficult period. Thanks for your offer of doing the consent order but I will be sorting that out myself now. I know it’s all going to cost more than I wanted but hopefully best in the long run!
Best wishes