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Really need some advice on whether to pursue this matter (divorce related)

(22 Posts)
Winged Thu 07-Apr-16 14:19:06

Brief background:
Got together with XH when I was 17, he was 25. At the time he owned a property outright due to inheritance he received shortly before meeting me.
He was abusive in every sense (mostly emotional) and had numerous affairs.
Despite this, we had two DC now aged 7 & 5. I gave up work to be a SAHM. There were periods where XH was jobless and I financially supported him to retrain etc.
In 2007, my parents sold my childhood home to him at £30k below market value. He needed a small top up mortgage and as I was working only PT at the time (student too) he told me it was best that only he went on the deeds.
He also had a further large inheritance (which I believe is mostly spent) and he inherited another property (commercial) jointly with his brothers and he receives rent for this.
We got married in 2013 after 12 years together but he had another affair shortly after and I decided to leave. I had also recently returned to work at this point.

I immediately sought legal advice and saw a young solicitor at a local firm for a free half hour consultation. She advised me that as it was a short marriage, I would be entitled to nothing and my best bet was to move out into rental and divorce him with the intention of a clean break whereby we would leave with our separate debts. I was very upset at the time, I was hoping I could stay in my childhood home with my DC or at least take some of the proceeds of a sale to get our own place. Acting on this advice however, I moved out.

We did a diy divorce in which he would only agree to proceed based on my infidelity. I think I ticked all the boxes about future court orders but can't be sure because he tried to white out the ones related to property. Later he asked me to sign a contract that said I wouldn't pursue any of his property and I added in clauses about him paying me some money back and a joint tax credit claim. He neither paid me back the money or the tax credit claim in the time stated so I think he breached this contract and I later sent him an email saying I wanted to rescind this contract on this basis. I did a law degree so have limited knowledge of the legal system and didn't receive advice about this. At the time I thought I was getting more than a court would award due to the legal advice I'd already had.

Today I saw a new solicitor who tells me that this advice was wrong and that I am entitled. She has recommended that we go to mediation and then court if he won't agree. However, it will cost £300 just to register as a client and £180 an hour thereafter. She wants to see this contract first as it could change everything but I don't want to pay £300 just to find out if I have essentially shot myself in the foot.

So my question is, is it worth pursuing now in light of the new advice and what affect will this contract have on any claim I try and make? Money is very tight and I don't want to waste it (XH will fight tooth and nail for 'his' property as money is all he cares about) so I need to be sure it will be worth pursuing.

I'd be eternally grateful if anyone could advise me before I sign up with this new firm. TIA flowers.

goldierocks Thu 07-Apr-16 15:02:22

Hello OP

I'm going through the divorce process with an abusive (and obstructive) spouse too. I'm significantly further along in the process and can gladly pass on the information I know.

It's not clear - has your divorce already been finalized, i.e. you have a decree absolute? Because you have dependent children, there would need to be a financial consent order in place before the decree absolute was granted. What did it say? (I do not believe this is the 'contract' you signed as no court would accept it if there were parts in it that had been redacted/crossed-out).

There is 'no fault' in the divorce process in England and Wales, i.e. the conduct of either party has no bearing on the financial settlement. The primary objective of the court will be to ensure that both parties have their 'needs' met, putting the children first.

If I understand the timeline correctly, your parents sold your then DP their house approximately two years before you had your first child, is that correct? Did they make any caveats regarding the purchase, for example assurances about a percentage that should be paid to you in the event that you split up as a couple?

Each case is looked at individually - it's not going to be possible for anyone to say for sure whether the judge will look at the date of your marriage or take the earlier date of the birth of your first child. Your legal team could also argue that your parents only sold your ex the house because there was an intention of marriage.

If you do not have your decree absolute yet and assuming the judge decides to commence your partnership from the birth-date of your first child, the starting point for splitting assets will be 50/50. (Your ex may have a strong case for excluding the property he inherited before he met you). Everything else from both of you (all homes/savings/pensions/other assets and debts) will go into a single pot, regardless of whose name they were in.

The judge will then look at 'needs'. Are you the resident parent? How often does your ex-husband see the children and does he have them overnight?
Obviously both parents will need a home (either the ability to buy or rent). If regular contact and overnights have been agreed, each home will need to be of an appropriate size. Does your ex pay maintenance, and has this been agreed unofficially or via the CMS?

I definitely think you need proper legal advice. It's certainly much more difficult (but not impossible) to challenge an existing financial consent order after the decree absolute has been granted. You would have to provide evidence that you did not understand the content at the point you signed it, or it has been changed/amended since you signed it.

The quote you have been given does seem exceptionally high. My firm has been truly excellent and I pay nowhere near that (London). I did not have to pay a fee to become a client. I have agreed a payment plan so I pay a fixed amount each month.

I'd suggest calling a few local firms and ask them if they provide a free first appointment. Discuss your situation with as many firms as you can before you decide which one to use. Please make sure you bring ALL the paperwork you have, it will make the appointment much more productive.

Good luck flowers

TeapotDictator Thu 07-Apr-16 15:03:55

I'm shocked to read that's the advice you received.

The length of the marriage isnt important if there had been a long period of cohabitation first, and there are children involved! shock

I'm not an expert other than being battle-weary from my own 3.5 year divorce but will be interested to hear others' opinions.

Winged Thu 07-Apr-16 15:22:52

Thank you both for the quick replies.

The house was sold to XH without any caveats except a verbal agreement that XH would pay £30k above what he sold his for. So, his was worth £120k, my parents' house was worth £180k, he was to buy it for £150k but that would be adjusted based on his actual sale price. I found out after everything had gone through that he actually got £125k for his but said it was £120k so he stiffed his own PIL for £5k.

No financial orders have been made at all. XH was going to draft a contract whereby I agreed a full and final settlement of nothing. I said I'd do it and added the clauses about him paying some money back. I have a horrible feeling that because I signed this contract, it shows an intention to go after none of his property. But I only did this because I thought I wasn't entitled anyway. The contract was never endorsed by a court and with any luck, he'll have lost it anyway although I refer to it in emails (he's probably deleted those too). However, this new solicitor (free half hour also) has said she wants to see the contract before advising further. That means paying the £300 to become a client. I'd rather find out now about the contract as if I have scuppered my chances, then I want to save the £300.

I have considered what would be fair. I have the DC for the most part (I do everything for them), he does have them overnight and pays agreed maintenance (private arrangement) but is not reliable with either and there are some issues of neglect. Basic calculations indicate that there is £160k of equity. If you deduct the £120k that leaves £40k to split between us so maybe ask for £20k? I was thinking £30-35k to represent the huge discount he got in the first place and I wouldn't go after his other assets or pension. He could raise the £30k easily by way of mortgage given the equity. He's currently sat in a huge 5 bed making money from lodgers whilst I am in a tiny privately rented 3 bed and have to rely on some housing benefit. The first solicitor really screwed me over. No way I would have left if I'd known.

I have considered at least complaining about the first solicitor but I have no evidence of her advice. I remember her advice very well though, right down to the wording because it was like a knife through my heart knowing there was nothing I could do. I just had to walk away from everything. I think she was a NQ solicitor - she was certainly very young.

goldierocks Thu 07-Apr-16 17:29:16

Hi again OP.....

So, to confirm - you have not received your decree absolute?
When there are 'children of the marriage' who are under 18 years old, it would be exceptionally unusual for a court in England or Wales to grant a decree absolute without a financial consent order.

I assume you still have a copy of the 'contract' you signed? You might want to investigate asking a McKenzie Friend to look at it for you. This will be much cheaper than a solicitor. If both parties have failed to adhere to terms in this 'contract', there could be an argument that it is already null and void.

You won't know what is 'fair' until both yourself and your former husband have completed an up-to-date Form E (full financial disclosure).

If I were you, I would:
1. Get all paperwork you have (old bank statements, mortgage paperwork, marriage certificate, bank statements, savings account statements etc) together.
2. Ask your parents to write a statement stating the verbal agreement they made with your husband, including the date.
3. Ask a McKenzie Friend to review all your paperwork including the 'contract'; ask for their help completing your Form E.
4. You may decide you are happy to use a McKenzie Friend to help you get a financial consent order/decree absolute...if not, telephone every solicitor you can reasonably travel to and ask if they offer a free first consultation.
5. See every single solicitor that you can - for free - before deciding on which firm to use. Discuss a payment plan up front with set monthly payments you can afford.
6. Apply for maintenance via the CMS.

Good luck flowers

Collaborate Thu 07-Apr-16 17:34:16

Your new solicitor is right. It is well worth pursuing. Go for it.

Without knowing more about it, I believe that the court would disregard the written agreement. It appears that you received no or bad legal advice at the time.

You have a good, valid claim.

RandomMess Thu 07-Apr-16 17:41:20

Absolutely go for it.

The cohabitation followed by marriage makes it count as a long marriage so to speak plus there are DC.

The starting point is that you are entitled to 50% probably more because you are looking after the DC!

Winged Thu 07-Apr-16 17:47:57

Sorry Goldie, I forgot to add about the decree absolute. Yes, we are definitely divorced. Decree absolute was issued around this time last year. We did a diy divorce between us, I filled out most of the forms although he did some things like tried to white out where I'd ticked to agree to any orders in the future. Pretty sure I reticked them though. It was difficult at the time because he wouldn't agree to the divorce unless I 'admitted' infidelity so he actually divorced me (ironically because he had many many affairs, I was always faithful until after we separated). I was desperate for him to agree to it at the time, wishing to avoid court and solicitor fees as I didn't think I was entitled to anything except not taking on his debts as per the first solicitors advice!

Collaborate that is what I'm really hoping will be the case. I'm just nervous about going down this route, paying the fees and finding out that the contract means I can't pursue anything although as you say, it was done on the back of erroneous legal advice and he breached it anyway.

I hadn't ever heard of a MF before visiting this board. The existing thread makes me a bit nervous but broadly can they give advice on something like that? Ideally I'd like someone with legal experience to look at it and say yes it's valid or no it's not. If it's not, then I can start the case against my XH. He will NOT be happy but I do feel it's fair he gives me something after everything I've done for him. The solicitor said it might be dodgy territory to confirm the sale was done at an undervalue but even without this information, I'm still entitled to some of the equity. She suggested 50:50 as a starting point. I don't think I'd be comfortable with that but maybe around £30k is fair and will be a good deposit to buy somewhere for me and the DC.

Familylawsolicitor Thu 07-Apr-16 21:56:49

I agree with collaborate and that your first solicitor advised you absolutely negligently. In a free half hour she should have kept notes which would enable you to complain but query what could be achieved out of complaint.
I would not advise you to go down the Mackenzie friend route in your circumstances
You really should pay properly to have the contract looked at but broadly speaking if you were not legally advised on it and it does not meet the children's needs it is unlikely to be upheld by a court in divorce
Normal contract law does not apply in a divorce situation where needs are most important and contracts (prenups / post nups) are not recognised except in specified circumstances usually full disclosure and full understanding of your rights AND meeting the needs of the parties and the children

Discuss funding with your solicitor
Be v clear that you need to set an upper limit for each bit of work or discuss what can be paid if anything at the end
Discuss securing litigation funding with her (look at Novitas) although may not be possible if all assets in your husband's name

Read this newly published guide to read up on likely outcomes and understand the process

www.judiciary.gov.uk/wp-content/uploads/2016/04/fjc-financial-needs-april-16-final.pdf

Not having made financial claims in a petition is not problematic - just don't remarry if a decree absolute has been granted

Familylawsolicitor Thu 07-Apr-16 22:03:02

Further to above particularly read page 15 ref inheritance / contributions
Prior cohabitation counts towards length of marriage, what happened during prior cohabitation is treated as if it happened during the marriage as long as the cohabitation was "of the same nature" as the marriage

babybarrister Thu 07-Apr-16 22:08:30

agree with familylaw and collaborate - you need a lawyer not a Mackenzie Friend [who are not insured and regulated lawyers but generally lay people] as there will no doubt be a row as to whether the agreement holds water or not

there is a lot at stake so you need to approach this commercially - you need to invest wisely now in order to get a good result

if you tell us moreorless where you are or PM me I can suggest someone good and sensible

iyamehooru Thu 07-Apr-16 22:24:00

I think you've been royally shafted and sincerely hope you can get some recompense.

runningincircles12 Thu 07-Apr-16 22:35:30

Hi OP, agree with the other lawyers on here. I am one too although currently non-practising.

If you are on benefits or a low income, you might be able to get legal aid for mediation. Highly unlikely that you would get it for legal representation though, as there would need to be recent allegations of domestic violence.

Don't get a McKenzie friend.

Make a complaint about the first solicitor who has negligently advised you.

You should also ask whoever is advising you to register a unilateral notice against the titles of all the properties he owns. There is no fee for this and protects (to an extent) against him selling the properties before financial matters are resolved. Land registry form UN1 and read guidance notes on Land Registry website.
In respect of the former matrimonial home, you can register home rights (but if you already have decree absolute, you would need to use the UN1 form as you would no longer have home rights). For home rights, Land Registry form HR1 is used. Again, no fee.

Even if he crossed out the financial claims in the petition, you can still make an application to court for a financial remedy. You are only prevented from doing so if you have remarried or if the court has made an order dismissing your claims.

Agree that the 'contract' is unlikely to be worth much as no legal advice, potential pressure and not in the children's best interests.

Use the Resolution website www.resolution.org.uk to find a solicitor and/or mediator unless BabyBarrister can fix you up with someone. I appreciate that money is tough, but there is quite a bit at stake here for your and your children's future.

Winged Fri 08-Apr-16 11:51:49

Thank you all so much for taking the time to advise me on this. It's been a bit of a roller coaster of emotions discovering that I was advised incorrectly. I've actually found the solicitor in question. She's still practising for the same firm but I also discovered that she wasn't a NQ, she had been practising 6 years by the time I sought her advice. I will definitely make a complaint. I also posted about this issue on another forum as I was so anxious about the effect of this contract. The posters there have largely blamed me and said that I was negligent in following advice given in a free half hour or implied that she can't possibly have advised me the way I claim and that I was upset and misinterpreted her advice. But I don't think that's true - I remember down to the wording what she said. Anyway, they've made me question myself in not seeking other opinions but I really thought they'd all say the same thing.

I also called the rights of women legal advice line and spoke to a lovely woman there. I read to her the contract wording and she seems to think it will be ok. I hadn't actually looked at it for a while and I thought I'd agreed not to pursue him for any property ever. What I actually wrote was that we would each deal with our own debts, no mention of property. He also breached every term related to his actions, e.g. paying me back some money he owed. So I feel more confident about that.

I will pm you BabyBarrister. My parents have agreed to help me out initially with this financially and I will pay them back out of any settlement if there is one. I need to get my head around doing this too because there is a part of me that is still frightened of him and I know I will be bringing his wrath upon my head for going down this route.

Thank you so much everyone. You've made a real difference to my state of mind flowers.

RandomMess Fri 08-Apr-16 12:36:07

flowers

TeapotDictator Fri 08-Apr-16 19:55:40

flowers I wish you all the luck in getting this sorted. I am so shocked at the advice you've been given and am glad you've had some good expert advice on this thread.

Huppopapa Thu 14-Apr-16 21:03:56

19 yr qualified barrister here.
Let me know if you want to chat.
I'd want a little more information on this purported contract but as a rule they don't hold water particularly where legal advice on the contract was not sought.
If it turns out you can't get anything from your ex, you might be able to sue the solicitors for what is absolutely plainly negligent advice.
Do not worry about not being able to pay for representation. As it happens, a guidebook for litigants in person in financial proceedings was published this week! The courts are increasingly used to unrepresented parties and this new publication explains everything. That said, your situation is quite unusual so probably not covered, but the point is, lawyers are increasingly unnecessary.

Pisssssedofff Fri 15-Apr-16 17:30:20

Please don't use a Mackenzie friend, more expensive than a solicitor and a bloody nightmare in my experience.

Winged Sun 17-Apr-16 23:25:18

Thank you again for the further replies, and Huppopapa in particular, that is an incredibly generous offer. Thank you so much flowers.

A bit of an update. I called a solicitor firm that specialises in negligence cases, including solicitor negligence. I didn't call with the intention of starting a case but just wanted to know what they thought of the situation and if there was anything I should do now in the event that I will go down that route at a later date. They told me that it would be difficult to prove that the first solicitor owed me a duty of care as the advice was given during a free consultation. I figured it might be difficult to prove if there were no notes from our meeting but I was surprised by this and it's again made me think I'm at fault for following the advice.

I did call the firm in question and spoke to their partner who deals with complaints. He was really good about it and told me that although there was unlikely to be any record of our meeting that he would ensure the right people dealt with the complaint. He also advised me to seek legal advice about any losses I've incurred as a result. I do feel better for having informed them.

The other thing I'm wary about is that several posters on the other forum alluded to the fact that this new solicitor might be telling me what I want to hear so that I will pay her to take on the case which has no guarantees etc. It's making it difficult to know what to do and confusing me about the best way forward.

I did see another solicitor at a different firm but I had to pay a fixed fee for half an hour as they don't do free consultations. I think I just wanted someone else to tell me that I had a good chance of getting something from the marital assets. However, this new solicitor said that she was unable to advise me on the specifics of my case and would give general advice only. Things like the court would take into account the delay in seeking a consent order, the contract might be taken into account, some stuff about mediation. It was all stuff I already knew from reading free sources online. At one point I actually said I was not finding her advice helpful in terms of making a decision but she said I told you I could only give general advice. She did tell me that I could get legal aid for mediation though which was something I hadn't realised. Is it usual for a solicitor to be so vague? I really like the second (confident) solicitor and would like to instruct her I think but the words of the posters from the other forum are ringing in my ears and making me nervous about believing her (getting my hopes up as they put it).

I think I would like to pursue at least a lump sum from the equity in the house but I'm feeling even more confused. I've now seen three different solicitors, one who I now know gave incorrect advice, one who seemed really confident (too confident?), and one who wouldn't even hint about what my chances are. I understand that there are no guarantees but this decision is scary enough that I just need to know what a likely outcome would be presuming that my XH will not reach an agreement at mediation. I also feel like time is against me because if he decides to sell the house, then there will be no option to pursue him at that point.

Please, has anybody got any words that would help me make what is feeling like a monumental decision?

CaptainTrub Mon 18-Apr-16 08:07:36

I'm also a family lawyer and agree with the advice given above. Just wanted to add that I would have thought that the £300 your solicitor is asking for is money in account of costs (ie money upfront) rather than a fee to take on your case. This is standard practice in law firms. Good luck flowers

CaptainTrub Mon 18-Apr-16 08:09:43

on account not in. Meant to say, I reckon you should go for the 'confident' solicitor option.

babybarrister Mon 18-Apr-16 10:23:52

It is entirely normal for no firm advice to be given in a free half hour ...

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