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Can mediators choose to exclude jointly agreed debts from the financial statement?

(2 Posts)
araucana Mon 17-Feb-14 13:01:14

I posted my problem this morning in the divorce topic, but someone has suggested I mention the problem here as it is legal - hope this is ok.

Background in brief, I am in the process of mediation with my hostile, philandering 72 yr old husband. He has always been cagey about finances and is now revealing debts of around £70,000 - which the mediators seem keen for me to pay half of, despite my contention that most are likely to have been run up in the last 3 years whilst separated, and in pursuit of other relationships. I'm self-employed on a low, variable income which is only £600 higher than his pension, and for the last 2 years have taken virtually sole responsibility for paying the large mortgage and bills on our house that is too big to sell, and for our son now 15. I have spent £35,000 of an inheritance to do this. further info here: http://www.mumsnet.com/Talk/divorce_separation/2000091-Financial-statement-mediators-wont-include-loan-from-sons-school-account-as-a-liability-to-be-repaid?msgid=45143764#45143764

My query is about a loan from the school fund set up for my son's education. In 2009 my son started at a private high school (where he receives a bursary) and has flourished. My aunt gave £68,000 (put in a joint account in her name and mine) for his education, to provide him with some stability. Around that time my husband disclosed he/we had £60,000 in debts, so with my aunt's agreement we borrowed £40,000 from the school fund with a written agreement to repay it by 2016 including £12,000 interest as it seemed to make sense to pay interest to the school fund rather than credit card companies. A year later our mortgage trebled and we stopped making monthly repayments, agreeing to repay the rest of the debt when the house was sold.

In 2011 I discovered my husband's infidelity and we technically separated. My aunt died in 2012. I consider repayment of the remaining £46,000 debt to the school account fundamental to my son's security as without it he may have to leave the school and as he is on their Oxbridge pathway it would be hugely damaging for him. But the mediators refuse to include this debt on the list of liabilities. They seem to have misunderstood the situation completely. Their latest communication says:
"The loan was effectively paid off, following (aunts) death as (araucana) was the beneficiary of the will. We understand that there is an issue in relation to the transfer of £40,000 from the loan account to the joint account in November 2009. As we understand it (araucana) believes that this money was used by (husband) to pay off personal debts. (Husband) asserts it was used for general household expenses."

In 2009 I was happy to accept debts as joint, although I dispute later debts after separation. The mediators seem to have misunderstood the gift as a loan for schooling and regard it as simply written off as I inherited from my aunt - completely releasing my husband from responsibility for repaying half of the £46,000 for our son - while expecting me to pay off half of the £70,000 debts my husband has acquired since!

Can the mediators dictate what is included or excluded as a debt - I have the original signed papers for this agreement? The only confusing point is that although I have always regarded it as my son's money, the account is in my name so I can pay the fees. My husband actually agrees that this money should be repaid (though he won't make any other contribution to his son's expenses) - so the problem seems to be the mediators.

Can anyone clarify the position please, as I'm feeling fairly despairing about it by now?

babybarrister Mon 17-Feb-14 14:18:57

mediation is voluntary so ultimately you can just say that you are not going to agree without it being taken into account - why not suggest that two scenarios are used - one with and one without loan?

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