**Below guys is the official solictors advice after seeing the figures of asset/property/and income of parties - anyone got any comments to regards to this? I’m thinking everything over ...
Solictors email after our chat below
“Addressing your concerns as to the impact of bankruptcy upon any final order, particularly where there is a Mesher type order, I would comment as follows:
i) Where there is a final order, Mesher or not, and there is an unforeseen change of circumstances within a relatively short period of time after the final order was made and which affects the implementation of that order, this is known as a Barder event. In those circumstances it is possible to apply back to court and ask the court to reconsider matters with a view to varying the existing order. These types of applications are rare and there is not a good success rate. The success rate may increase if there is evidence to suggest an intentional frustration of the order.
ii) Where there is a Mesher type order, the former matrimonial home (fmh) is placed on Trust and is held on trust by you both as beneficial tenants in common as to a percentage that is agreed, This means if bankruptcy takes place, the property is protected in so far as the percentage of beneficial interest, for example, if the beneficial interest is 50%, then the Trustees in Bankruptcy will still be able to take action in respect of your husband’s 50% share and could force a sale. Whether they do or not is at the discretion of the Trustees. If, as we discussed you were to seek a 100% beneficial interest then bankrupcty would not affect the Trust.
iii) With regard to bankruptcy generally, an individual cannot just petition for bankruptcy. There is a need to show significant debt and inability to pay. It is the court who decides whether a person is made bankrupt. There are also the implications of bankruptcy which your husband may also have to consider.
When the court considers what is a fair and reasonable settlement, it will refer to the Section 25 Factors. I enclose a leaflet which touches on those factors. A starting point of any financial settlement is 50/50 and any person who wishes to detract from that needs to show good reason to do so. The court also have to have regard to the provision for a home for your daughter, but not necessarily the matrimonial home. This is where the S.25 factors come in. From the information you provided I advised you that you do have an argument to detract from the 50/50 presumption. You currently have no earning capacity. You have a dependant child residing with you whose welfare needs require to be met. There is a disparity in income. You informed me that your daughter has suffered psychologically from the separation and the fact that her father does not wish to continue a relationship with her and is attending with CAMHS. This may be something that is relevant to your argument for you to remain in the former matrimonial home. It should be raised at the FDR as you may need to obtain a report from CAMHS if her conditions is not accepted by your husband.
From the information you provided, you informed me that in the event the fmh was to be sold and after payment of estate agents fees, solicitors and redemption of the mortgage including early repayment penalty and Help to Buy Loan, there will be in the region of £10,000 equity. You have no borrowing capacity and if you were to rent a property which met your needs you would be paying monthly rent of £800. The current mortgage repayment is £500.
Without the benefit of considering all documents filed in these proceedings, I do not believe it would be unreasonable for you to seek an outright Transfer of the fmh into your sole name at the trigger point of any Mesher type order. I would also suggest that you consider a pension sharing order to reflect the payments made into your husband’s pension funds for the duration of the co-habitation and marriage period (the pension share to be out of his biggest fund so as to save costs). This is difficult to calculate without the expense and instruction of a pension actuary but a broadbrush approach could be applied. It may also be that there is an argument for spousal maintenance until the “trigger event”. The spousal maintenance could be the whole or part of the mortgage repayments.
Within negotiations, it is always possible to concede the spousal maintenance and pension sharing element and or offset these against you retaining the whole of the equity in the fmh.
Unfortunately there is no clear cut advice I can give you to enable you to achieve the financial settlement you would wish for. Whilst I am aware you wish to conclude matters sooner rather than later, it may be advantageous for you to proceed to FDR and obtain the view of the Judge on the day. You need to be aware that there are also risks in taking this course of action as the Judge may express a view contradictory to what you are seeking. Conversely the Judge may express a view providing you with a more beneficial settlement. It is a matter for you to decide, however if no agreement can be reached the decision is taken out of your hands”