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Breaking a Memorandum of Understanding

(14 Posts)
jemmaleejade Fri 24-May-13 08:35:52

I got divorced 6 years ago and through mediation it was agreed that I would keep my house as my ex wanted nothing to do with it. I offered him my car and pension but he refused. I had stated at the time that if the house had to be sold I would rather sell it straight away rather than have to uproot later on as we have 3 children. He didn't want anything and we got a memorandum of understanding drawn up but I believe this isn't legally binding. Now my ex has remarried and says he is going to see a solicitor about getting a share of the house. I am not sleeping through the stress and worry about where it will all end. Does anyone know if he can lay down a claim after all this time?

Collaborate Fri 24-May-13 13:19:36

He can. Delay may reduce his award, but there's no guarantee.

Why, at the time, didn't you formalise the agreement with a court order?

This is a timely reminder to those who think a clean break consent order isn't worth the money.

jemmaleejade Fri 24-May-13 14:12:53

The courts refused to stamp the order but what is the point in a memorandum of understanding if it doesn't count for anything? His solicitor didn't want him to sign it at the time.

Collaborate Fri 24-May-13 17:01:32

It's all to do with the status of an agreement, and a mediated agreement at that. The fact that you both signed a consent application asking for an order to be made in the same terms is helpful. However you got on with your life for 6 years after that. Delay will, I think, count against him, but without knowing a lot more about your case it's impossible to say anything more.

You need to see a solicitor. Where do you live?

iheartdusty Fri 24-May-13 23:18:21

collaborate is right - you need legal advice; but you might want to have a look at the 'notice to show cause' procedure and the principles established in a case called Edgar v Edgar.

basically what this means is - you make an application that exH should be required to show cause (ie good reason) why the court should not just formalise your agreement into an order.

it is not as simple as saying 'you agreed so that should be that', but if the agreement was not unfair, was made on an equal footing, and you were both fully informed, it might be upheld.

jemmaleejade Fri 24-May-13 23:26:40

I am in Stevenage and have booked to see a solicitor through the women's resource centre but they can't fit me in for a few weeks.

MrsBertBibby Fri 24-May-13 23:35:58

Who issued the divorce petition?

MrsBertBibby Sat 25-May-13 00:07:49

Sorry, it may make a significant difference. If it was your Petition, not his, then he almost certainly never made any financial claims in relation to your marriage, and by remarrying he has deprived himself of any right to make such an application. If that is the case, his only recourse is an application under Trusts of Land and Appointment of Trustees Act. In whose name is the home registered? I'm assuming joint names. If you haven't remarried, you retain you rights to make claims under the Matrimonial Causes Act, which (given the children are with you) is considerably more favourable to you.

As far as the agreement you signed is concerned, I think there's a fair chance this would be upheld. You entered into a mediated agreement, presumably on the basis of proper financial disclosure, and subsequently, having had the opportunity of seeking legal advice, confirmed that agreement by signing a consent order. Do you know why the Court wouldn't approve it? In most cases, IME, that happens because the statements of information in support aren't completed properly, so the Judge can't approve the order as s/he can't understand it, as there's not enough information about your respective finances.

The bad news is that you will probably have to go through a fairly gruelling court process to get there, but the Court should be keen to uphold the agreement: for public policy reasons, if nothing else, they don't like letting people renege on deals. And the delay should benefit you rather than him: you've stayed there all these years on the strength of it, presumably paying the mortgage and maintaining the home.

Get a lawyer, and go through the whole thing in detail with them, but try not to stress. From what you've said here, I don't think you'll be losing the house any time soon.

babybarrister Sat 25-May-13 22:01:17

I would recommend Lyn Cowley at Nockolds - if neither of you had legal advice the chances of the MOU being upheld are very low. having said that the court will take it into account ....

jemmaleejade Mon 27-May-13 21:02:36

I haven't remarried but my ex husband has and they have a house that is fully paid for. I think his wife has started all this because she doesn't like the fact that he has to pay towards the upkeep of his children. He sent my son a text stating that if he has to continue paying he will claim a share of the house like he should have done in the first place. My husband started the divorce petition initially but I didn't agree to it because he incited unreasonable behaviour, but I divorced him for his adultery. babybarrister, we did have legal advice and the mediator made my husband consult with his solicitor twice before the MOU went to court. His solicitor negotiated no spousal maintenance and reduced child maintenance that would never be increased. We were told that no court would have stamped the papers which I think was either because they didn't think it was fair or because we couldn't have a clean break due to the fact he still pays child maintenance.

The mortgage is in both our names still as I don't know how to get him removed, but he hasn't paid a penny since the day he left. I am not worried about the short term as my youngest daughter is only ten and I know I can stay in the house until she is 18, but the point is that if I had had to sell I would have done it from the beginning and moved somewhere cheaper.

babybarrister Tue 28-May-13 18:26:00

I am a mediator as well as a family barrister - an MOU is not legally binding and you should have been advised of this by the mediator. If you had wanted it to be binding you had to have had it made into a court order. You can chance your arm at suggesting it is an Edgar v Edgar type agreement - ultimately that will be a matter for the judge to decide.

Xenia Tue 28-May-13 19:24:04

Soit was such an unfair deal for him the court would not sign it even though you had both had some legal advice? That's quite rare. We had no court hearings but both had lawyers and the court sealed our consent order (ex husband got about 60% of our assets).

I wonder why it was all left open at the time.
Also surely if things are going to be assessed now then his unmortgage house of which he probably owns 50% might go into the pot? In that case perhaps you might get more than all the equity in your house - i.e. he might do worse by bringing this all up now.
Themortgage going into your name is a key thing most people try to arrange at the time as part of their divorce - my husband was advised not to leave the house until he was off the mortgage and the ouse transfer had gone through at the Land Registry into my name and he had got his money. You can get him off the house if your earnings are sufficient to convince the lender to transfer the house just into your name. Is thatlikely?

jemmaleejade Tue 28-May-13 20:56:43

The mortgage is quite small now as I paid a third off with my redundancy money. I have been paying it on my own for the past 6 years. The reason I couldn't get him off the mortgage was because the building society said he had to sign something and I had no means of contacting him as to this day he has never given me his address or phone number and I have never seen or spoken to him. I am wondering what would happen if I wanted to move.

Xenia Tue 28-May-13 21:53:42

As he is still a joint owner you would need his consent to sell the house and he'd only agree if he got half the equity etc. which is why the suggestions above about getting a court to settle the divorce finances finally are a good idea.

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