Need advice for final hearing

[Escape05]

hi, heres basically whats happened so far:
In late 2013, i told my husband that i wanted a divorce, as he was treating me unfairly; he was controlling, financially and mentally, he bullied me and he also cheated on me. Me and my older children (twins who were 17 at the time) discussed it and they encouraged me to divorce him, as they could see that our family was unhappy and they didn't like the way he treated me. I used to work from home, looking after children, so that i could always be there for my 3 kids and my income used to provide for the family. However, he jeopardised my job, which ended in my work being stopped, stopping me from getting any income. We have two houses; the matrimonial home, which is mortgage-free, and another house that we have a mortgage for, which is currently being rented out, with a good income, which is controlled by h. On top of that, he is self employed and works full time.

He is currently living in the spare room. He went on holiday last summer for nearly 2 months on his own. He came back from his holiday and two days later, there was an incident where he hit me while i was asleep. He was escorted by the police and there was a restraining order for him not to come back for 3 and a half months. He appealed and we went to court, where he won due to lack of proof. After he wasn't found guilty, he didn't come home. So i went to the court myself and applied to get a restraining order- the judge gave an order for h not to come home for a month but set a hearing for two weeks time. in that hearing, the judge said that h was allowed to use one of the spare bedrooms but he is not allowed to talk to me or enter my bedroom.

For our 2nd hearing for the divorce, when we were asked to put forward an offer by our barristers, i gave an offer so that me and my children keep the matrimonial home and he keeps the other house, and even if its sold, its enough to give him good accommodation for himself. he gave an offer saying that both of the houses should be sold and that we should split the money 50/50.

i have 3 children who are all in full time education; i have 18 year old twins who are both currently resitting year 12 and a 13 year old daughter. He keeps telling my twins that he doesn't care about them and that they are adults now and he wants nothing to do with them. When they apply for uni, they want to study from home but my husband is trying to tell them to study further away, i think to lessen our chances of keeping the house. he is paying child maintenance but as he hasn't declared his income properly, the money my kids are receiving is barely enough to support one child.

My final hearing is in 5 months time and i need advice. i am very worried and i don't have any idea on what the outcome could be for my situation. my solicitor tells me one thing one day and something else on another day. please, if anyone has been in a similar situation or knows anything about it, please can you help? thank you.

Five months is a long time away, but it's perfectly understandable that you're already anxious. I've just had my final hearing in divorce.

Unfortunately, no one can tell you want the outcome will be - not even your legal team. A judge will consider S25 of the matrimonial causes act (make sure you've read it) and make a decision having heard 'all the circumstances of the case' and what he deems fair to both parties. That's why every single outcome is different for every single divorce, and in fact, why two judges will come to very different conclusions.

A barrister will present to the court, the parts of the S25 act, which are most significant to your case.

All your offers thus far are 'without prejudice' this means a judge won't see them until you start making 'open offers' - so it doesn't matter who is offering what. All through the next five months, and in fact, during the final hearing, the onus will be on you two (via your solicitors/barristers) to keep negotiating an outcome (making WP offers) but before the FH both sides will make open offers, which the judge will see. A judge will only rule when you've hit deadlock or if you cannot agree on anything at all. If you actually do go to a FH (and you may, of course, settled beforehand - many, many people do) then both you and he will be 'examined' by each other's barristers as well as your own. You will have to supply evidence of a) your earning capacity, b) your adult children's preferences for uni, e.g. do they have any firm offers yet for uni? c) how they will fund uni (or be funded), cost of alternative housing that doesn't pull your youngest out of their school etc.

As two of your children are over 18, a judge may rule their needs and wants are not important. However, a judge may rule their needs are important until they graduate, it really depends on how this is presented to him/her. But clearly, this is an area where your two barristers will go head to head.

The judge will have to consider the needs of your 13 first and foremost, and above and beyond the needs of you and your husband. That means, depending on how much money is in the pot, you can keep the house for the next five years. Likewise, the judge may feel that there are enough assets elsewhere, e.g. the second property + pension + business valuation, that you keep the house in entirety, and that is the best way to divide the pot up.

Your barrister, when preparing for your case, will know how best to present all of your individual information to the court (that's their job) in order to maximise your chances of getting this your way. Likewise, his barrister will do the same for him. It will come down to who has the most compelling evidence.

The only outcome that is guaranteed is that either he, you, or both of you will be ordered out of the FM Home, and a deadline set for this to happen.

I ended up negotiating an outcome mid way through the trial to resolve the issues rather than taking my chances with the judge, so do try to get negotiation underway sooner rather than later. The common adage is that it's worst case scenario getting a judge involved as "both parties leave feeling unfairly treated".

thank you for replying. you made a few things clearer for me but i just wanted to know, what is the S25? its never been mentioned to me by my solicitor before

"s25 of the Matrimonial Causes" act aka 'all the circumstances of the case' so all the facts that must be born in mind by a judge.

Google it and you'll see all the criteria. Of course the not all the criteria is equally treated because your circumstances are different to the next person's. For example "conduct in the marriage" is v.v.v.v rarely considered relevant - unless it is so grossly out of the ordinary as to be relevant, but age of divorcees, length of marriage etc are more relevent.

Your barrister will know which ones to emphasis.

Good luck. It's hell but it does end.

It isn't possible to just read s 25 Matrimonial Causes Act 1973 to understand it or make comparisons with other people because circumstances are different and each case depends on the specific facts. Whist there are some uncertainties a family lawyer who has not only studied the law and completed training on the job for years but also completes further training year in, year out and has experience of working with the courts is in the best position to advise about probabilities. If your solicitor is telling you one thing one day and something else another it may be because new information is coming to light.

Under s25 the welfare of dependent children under 18 is the priority however over 18s in education aren't irrelevant. It isn't unreasonable for young students to be provided with a base whilst they are uni studying for their first degree if the resources will stretch that far. Sharing assets 50:50 is only really appropriate the needs of both parties can be met after a long marriage and there was no exceptional contribution from one party. When there aren't enough assets they are shared according to the needs of the individual parties. The aim is to leave both parties living a similar standard to start independent lives.

A good starting point is to consider local property prices and research each parties' mortgage raising capacities. If the former matrimonial is larger than required it may need to be sold to release equity to enable you both to rehouse. As you aren't working you won't have any mortgage capacity and that may justify a larger share of equity in your favour, although if your husband is older and can't get the usual 25 year term mortgage that will also be a factor. You need to check out what state benefits you might be entitled to at www.entitledto.co uk and think about retraining and working to maximise your income unless you are nearing retirement age.

There are different options. For example a sale of the former matrimonial home can be deferred until the youngest child reaches 18 years of age or one asset can be offset against another so the parent with the major responsibility for housing children has a larger share of equity whilst the other spouse retains a larger share of their pension fund. The judge at the FDR should have given an opinion as to the likely outcome.

Thanks for replying STIDW

There is another question I wanted to ask. When we were asked to fill our Form E's, we were both asked to present our bank statements. In my husband's bank statement it was shown that he was earning a lot of money through his self-employed job. He also had a lot more money in his account which was taken out as soon as I asked for a divorce. He said he sent it to family but has failed to provide proof for it. Moreover, he also used to own a good car which he said he sold for cash and has failed to provide proof for. My husband also keeps changing bank accounts and jobs to confuse the court. All of this has been reported to my solicitor. So my question is that in the final hearing, does the judge decide according to his Form E or by how he has been recently handling his money?

Something I also forgot to mention is that we have been married for 25 years, and was wondering if that would be taken into account.