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Division of property after extended period of separation

(15 Posts)
difficultdivorce Sun 12-May-13 18:49:14

My PILs have a difficult relationship. Despite being 'separated', they spend most days in each others company. MIL however, wants to divorce. The house is much too large for her to cope with, and is in a state of significant disrepair. FIL is happy for the status quo to remain, but if MIL seeks to sell the house (which she is desperate to do), he wants what he feels is his entitlement, which is half the house. This means she is effectively being barred from selling, as she would not realise enough from half the proceeds of the sale to buy a suitable house.

FIL moved out for about 12 months in the 1980s, and MIL got court ordered maintenance for the children (so it was an 'official' separation?). Upon his return he moved into the spare room. They never again shared a bedroom, and he moved out permanently in 1999. They have never divorced.

FIL subsequently purchased his own house, which he now owns outright. He retired 6 years ago, and since then he spends every day at 'MIL's' house, to which she gave him a key.

The MIL's house is still in both their names. They each have a pension fund, of which FIL's is far greater. It seems when they have discussed the matter that he thinks he is entitled half the value of the house, but is flabbergasted at the idea that MIL may have some entitlement to any of his pension assets.

I would be so grateful if anyone here could advise what their current entitlement to these assets might be i.e. FIL's house, MIL's house, and their respective pensions.

bran Sun 12-May-13 18:55:09

Message withdrawn at poster's request.

difficultdivorce Sun 12-May-13 19:01:52

Thank you for your reply, bran. Do you know what happens if FIL refuses to engage in the process of divorce? In the past when MIL has attempted to resolve their situation he has refused to open letters, refuses to sign documents, and won't provide any details of savings, his pension etc. MIL tends to then give up.

mumblechum1 Sun 12-May-13 20:09:16

Well FIL can be as flabbergasted as he likes, the reality is that for such a long marriage, your MIL is likely to be entitled to half his pension. Depending on the value of any other assets, their ages, income, etc etc it is not unlikely that MIL will get more than half of the value of the house so long as she agrees to negotiate on pensions/spousal maintenance etc.

Collaborate Mon 13-May-13 07:01:39

It's it straight forward. Yes, there is a principle that assets accrued during the marriage (prior to separation) should be divided equally, but there is also a principle that each parties reasonable needs should be met, so she might have a claim for some if the equity in his new home. She ought to take some proper legal advice.

Xenia Mon 13-May-13 07:51:00

I agree with everyone above.
The starting point even after such a long separation is in England (not Scotland) division of assets at date of divorce, not date of separation if that is needed to ensure both are adequately housed. This is why it's wise to have a final consent order sealed by the court very soon after you part not 10 y ears later.

I suspect it will be case of add the equity in the joint house and the father's new house and savings of both sides and their debts - then divided by two. Separately the ex wife will probably get some kind of pension share of the husband's pension through a pension sharing order.

I think she can divorce even if he does not engage with the process. He comes every day so she can hand him the papers. He can be made to comply by the court if he refuses. She can do it herself or use a solicitor if she can afford it. Obviously it going to be better with a good solicitor if enough money is at stake to justify that.

MOSagain Mon 13-May-13 09:01:23

Agree with mumblechum and collaborate she can get on and start divorce proceedings. If he ignores papers then she can get him served personally. Xenia, she can't effect service herself, she'd need to get a process server to serve him personally.

She may well be entitled to half his pension and of course a share of 'his' house. He can't simply expect to have half the proceeds of the FMH and have his house not taken into account.

babybarrister Mon 13-May-13 09:56:02

Message withdrawn at poster's request.

babybarrister Mon 13-May-13 09:56:10

Message withdrawn at poster's request.

difficultdivorce Mon 13-May-13 16:13:17

Thank you so much for your replies.
It is interesting that the prevailing opinion of all of you is that his house will go into the 'pot'. I went with her to a solicitor about 18 months ago, who said that as FIL's house was purchased after they separated, it would likely not be considered a marital asset. I am assuming this is incorrect, as Xenia, you say that division of property in England (where we are) is only upon divorce itself?

Thank you to all again!

Xenia Mon 13-May-13 17:16:34

I am not a divorce lawyer so best to take your own advice. In most cases there is not much money so when courts are trying to ensure children are housed after a divorce or women who will never earn much because they stupidly sacrificed their career to iron men's socks or whatever housewives do the only way to house children or the woman or man) who cannot earn is to include things like lottery win, inheritance from parents, earnings since divorce. It is one reason people rush to finalise finances in a legally binding way quickly after divorce.

If there is more than enough money to go around - very very very rare in the UK- then as someone said above then assets built up after separation but before divorce would not necessarily be included.

In other words it could go either way and if the couple are not careful they may spent the difference between their two offers on lawyers which is never very wise so I suspect some kind of compromise will be needed. These are older people without dependent children too. I wonder if there is any reason the mother cannot work.

AlsoI think it may be that he is already drawing his pension so it is too late for a pension sharing order. Do we know that yet? has be bought an annuity?

Also what is a suitable house? If there is enough to buy her a 2 bed terrace but she wants a 4 bed detached she might find a court says no half the current house is more than enough to buy her a lovely retirement flat so no share of the post divorce other house.

difficultdivorce Mon 13-May-13 17:58:28

Thanks Xenia. Both ILs are in their early 70s, both are retired and drawing their pensions. I know no details about FIL's pension, or whether an annuity exists, as he has never shared this kind of information with MIL (because I think he has always been concerned about what might happen to it in case of divorce).

A significant inheritance from her parents enabled the purchase of her current house - it was very much an 'upsize' from the original marital home. I'm not sure if this has any implications in her favour?

If MIL's house were to be sold, there would definitely be enough to buy her a nice flat, but she is very particular that she wants a house with a small garden. Half the proceeds of the sale of her current home would not be sufficient for this, particularly in the area in which she lives (and wants to stay). She needs about 75% of the proceeds to buy what she wants.

It is such a awful situation, and so depressing for my DH. His parents seem locked together in a disastrous marriage, that should have been ended years ago. Very sad.

Collaborate Mon 13-May-13 18:42:03

Illustrative of the need to take proper legal advice is the suggestion that if a pension is in payment it can't be shared. It can.

babybarrister Mon 13-May-13 19:43:09

Message withdrawn at poster's request.

awwwwmannnn Tue 14-May-13 13:36:01

It seems like dear FIL wants to have his cake and eat every bugger elses at the same time!!!

any separation/divorce is a two-way street, he doesn't get to pick and choose who has a share of what assets. if he claims to have an interet in MIL's house as they are still married, then the same could be said of the MIL with FIL's house.

although separations and divorces are procedural and pretty straightforward, often the ancillary side of the proceedings can become very drawn out and protracted. Every single asset and every single penny both parties own/have are taken into account, along with children of the marriage etc, and the Judge is given this information who will then determine how everything is split. its not always 50/50.

i would imagine that should MIL and FIL go down the road of divorce, then they may well be asked to consider Mediation. This is a more informal way of coming to an agreement, and allows both parties to air their differences in front of an impartial third party. if an agreement can be made, then a mediation agreement is signed outlining the details of the agreement, which is legallly binding by the Courts.

HTH

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