What is a fair house split after divorce and years apart?

[CrumbocalypseNow]

Name changed but am a long time poster. I have sought legal advice but the advice was to try to speak to my ex husband as we are on good terms. However, because of the way he is I need to be very clear on what is fair and what is reasonable before putting any kind of idea to him as he's very rigid in his thinking on certain things and has zero empathy with no idea of what is actually reasonable. So wanted to ask the vast experience which makes up this board on what is fair and reasonable.

Have been divorced/separated 20 years and was married for 15 years with two small children now grown up although still supporting youngest at uni.

When we divorced, we made a verbal agreement in mediation that I would stay in the house but we'd split it 60/40 when I sold it when our children were grown up. I'd not have any claim on his pension but we cashed in an endowment and I got that which was about 10k which settled a credit card I had in my name but which had been used for driving lessons, a computer for freelance work, and house things.

I realised on speaking to him recently that he thinks the 60/40 split is based on the house value now and not what it was then. My understanding is that it was based on what it was when we split up as I was waiving my right to part of his pension. I had a valuation at the time and obviously it has gone up in value since then to the tune of around 100k. The mortgage is 120k and he will be in a position to pay off his half of the mortgage when it comes up for renewal next year. He works for a local authority and has a good pension. I had no pension as was a single Mum struggling for years doing freelance or part time work. I paid all house costs, insurance, mortage since 2006.

We get on well and he had to rent all that time while I got to live in the house with our chidren. I don't want to be unfair on him. The split was because he fell in love with his boss (didn't have an affair but would probably count as emotional affair) but mostly have realised he's quite autistic and really struggled with small children and just wanted to be out of the house. I grew to feel resentful and unsupported and when he admitted to being in love with his boss and wanting us all to be friends, I just said I'd had enough and wanted out. The lack of empathy for not only myself but for his children was tough in those early years.

Move to the current day and cost of living crisis and the fact the house needs repairs and I couldn't afford it on my salary alone and it's coming to the time of needing to sell, I needed a lodger and we actually get on well enough that I suggest he move back in, pays me rent rather than another landlord, and we do up the house together to sell it or even potentially just live separate lives in the house (I have no desire for another relationship). It means he gets to see his children when they're home and it works as well as it can do given the circumstances.

Obviously that muddies the water when we need to separate everything out. What on earth do I do? We get on well but I ultimately dream of my own little flat somewhere but don't know what to suggest in terms of splitting the house. It's not fair really if we do 50/50 based on what the house is worth now as I paid the mortgage alone for years (although he was paying rent elsewhere). I also would have been entitled at the time to some of his pension. I do have one now but not very old and I don't think I'll ever be able to retire. I had thought I might be able to downsize a bit and use some of the house equity for a pension.

Sorry that's long - just no idea where to start on what's fair. Obviously we should have had it written and signed at the time and it's my fault really that we didn't as I was just really struggling back then and struggling to stay on top of everything and I let things slip. Then it got too late and then I realised the misunderstanding. I'm happy to come to a new arrangement but want it to be fair to both of us.

With no financial remedy order you are still financially entangled.

you may not be married any more but you are both open to action from the other.

see eg here

https://www.bannerjones.co.uk/resources/risks-of-divorce-without-financial-settlement

obviously if you are amicable this is probably fixable but if the only record of what was agreed is a verbal agreement which you both remember differently then clearly this is no basis for discussion.

if a mesher order had been in place then it would be normal for the value to be split in percentage terms and be split on the value of the house at sale.

see eg here

https://osborneslaw.com/blog/mesher-order/

You agreed on a 60/40 split. Imagine the house at the time of the split was worth £100k. So £60k to you, £40k to him. Now it’s worth £250k. By your reckoning he should still only get £40k. But if you get 60% of the initial value, ie £60k, what happens with the remaining £150k?
Your ex is right. It should be based on current values. If you had a court awarded Mescher order, that is what would happen.

Why are you ignoring the bit about

you haven’t ( legally) given up any rights to his pension
tne equity share should be current value of house because you tied up his capital and had some use of it.

you can of course agree different between you but if you don’t and it goes to court there will likely be looking at the above ….

Why on earth do I need to go to court? We've been legally divorced for 20 years.

The mediator we consulted 20 years ago agreed that our joint proposal was fair. We both agreed it was fair. It's just that we didn't get it finalised and have different memories of what we agreed to then.

Very recently, I consulted a family law solicitor who advised that since we've arranged everything financial to do with our children between ourselves since the divorce and because we get on, the best thing would be to try to just agree between ourselves how we split the house sale when it happens. Only if there is strong disagreement, will we need to involve legal people.

Why on earth do I need to go to court? We've been legally divorced for 20 years.

Because a judge needs to sign it off (put the court stamp on it). A judge can decide the marital asset split is unfair and send you away to do the order again. Obviously it's cheaper if you both agree on the split but it still needs to be signed off by a judge to be legal. I believe the relevant form is D81.

@CrumbocalypseNow because it’s not a legal order if a court doesn’t agree it. Have you actually looked at the law on this. You can draw up the order but the court must approve it or it’s not a legal document or binding. I think you need better legal advice!

@millymollymoomoo

I'm not ignoring that bit - I'm aware that I haven't actually waived rights in his pension legally because legally we haven't got an agreement in place.

However, I wanted to keep to my word on what we agreed in mediation 20 years ago as that seems the morally right thing to do and I did agree to waive all my rights to his pension. He just doesn't remember that I ever had any entitlement to any part of his pension. He just remembers the house split - at least we both remember the split being 60/40.

@CrumbocalypseNow Here you are. This is what has to happen. How you get to the draft is up to you, but note the first sentence. Govt web site.

Yes I have and consulted a well regarded family law solicitor.

On completion, the mortgage is repaid first from the sale proceeds. The remaining net equity can then be divided 60/40 (or whatever we agree) via the conveyancing solicitor, who can handle the split directly to each party's account.

There's nothing inherently illegal about agreeing to an unequal split of proceeds even without a court order, especially if it reflects their original understanding.

As mentioned we already have the decree absolute with no financial order. We've been agreeing what to do with our finances between ourselves for the last 20 years post divorce with no court involvement. We get on. It's not a problem. We've just remembered this rather crucial bit differently so I wanted to know what's considered usual and fair before I speak to him.

OP I think it's fair that the value is based on the house now, I'm really not sure why you think it wouldn't be. He's been paying rent all this time instead of a mortgage which he could have done if the equity had been released 20;years ago. It sounds like you agreed to living arrangements as it was the best thing for the kids.

I think the pension is more tricky as you've been legally divorced for 20 years. I think it will be difficult to claim anything more on his pension that what it was 20 years ago. Anything to with the pension will have to go via a pension sharing order.

I would speak to a better solicitor as you need to understand what you are legally entitled to

@CrumbocalypseNow
You are not understanding that a divorce consists of three parts. One is the admin side which consists of getting the decree nisi/absolute. This is a legal process which involves the court as only a court can issue the absolute.

The second part is finances and splitting of marital assets. You and ex can have an agreement but it is not legally binding until a court approves it.

The third part is about the children, who has them, visitation and maintance payments. You don't need court approval if you both agree.

You did not understand the solicitor correctly.

@CrumbocalypseNow It’s madness not to have it legally agreed by the court. No lawyer will say anything different. You don’t agree!

I don't know if this is legally workable but I'd probably tell him that he sticks by what we agreed, or I'm going after fair division of all assets, including his pension. It would have been simpler just to sort it all at the time.

You've paid the mortgage and had the security of the home, but he hasn't had use of his home equity and has paid rent instead. So maybe you're quits there?

I don’t really think you can go for the frozen in time option because he has had to rent all that time, when otherwise he would have equity which would have grown in value.

Splitting 60-40 now still gives you an advantage which accounts for his pension.

As an aside.. I don’t think legally you can be a lodger in a house that you own. If he currently lives in the house, is on the mortgage and has been paying you money then he has been paying part of the mortage.

@Octavia64 This is perfect - thank you. The Mesher Order information was really interesting as this is very similar to our situation and we are both still on the mortgage although I took over all mortgage payments etc. It does seem that just the plain 60/40 sale would be considered normal and the 20% extra would be seen as a fair balance to represent the waiving shares in pension. I probably just misunderstood at the time.

I talked to my ex as the youngest was about a year off 18 about what best to do as am aware the time has come to sell the house and split the asset between us. It was his idea to not sell yet as our youngest will still be needing to come home in the holidays from uni and also may need a place after uni for a while. He would prefer them to have somewhere stable.

That was how we ended up in our current situation as it seemed only fair that he not continue paying high rental prices and high bills for heating etc and so he moved in as a lodger and to help get the place ready for sale. But then it's definitely not fair for him if his share in the house isn't appreciating in value over time since he could force the sale and invest it elsewhere.

Thank you and yes I think it sounds like the 60/40 split is considered quite usual and based on future value to allow for the fact that his money tied up in the house could have been invested elsewhere in that time.

He's only been a lodger for a few months so far. That's good to know though. We had looked at becoming tenants in common as I had thought since we are divorced that the other wouldn't necessarily inherit the house and we'd both want the other to inherit our share of the house as it will all go to our children anyway.

But given we haven't got the legal financial order and are both on the mortgage maybe the ownership would automatically pass to the other. So definitely need to seek legal advice on that.

Also when applying for student loans. In the past for my eldest they got almost a full loan because I don't earn enough. If my ex is now back in the house as a lodger but can't legally be a lodger this could impact that even though our finances are otherwise separate and we've been divorced for 20 years! What a mess! Definitely need to seek legal advice on that too so a visit to a solicitor is in order :D

@CrumbocalypseNow You don’t have a mesher order! So there no relevance. You have no order or any legally enforceable agreement.

I know the divorce consists of three parts. I have sought legal advice. The absolute came through 20 years ago with no financial order. We recognise that either party could still make a claim on the other financially without a financial order.

Since we are both joint legal owners on the title and mortgage, the sale requires both parties' cooperation to instruct solicitors/estate agents and sign the transfer documents.

On completion, the mortgage is repaid first from the sale proceeds. The remaining net equity can then be divided 60/40 (or whatever we agree) via the conveyancing solicitor, who can handle the split directly to each party's account.
There's nothing inherently illegal about agreeing to an unequal split of proceeds even without a court order, especially if it reflects our original understanding.

Maybe when we do sell the house, we can instruct a solicitor for the conveyancing and then at the same time another solicitor to draw up a financial order to reflect that the house sale represents the final division of assets and neither party shall have any claim over the other in the future. There is no legal requirement to have this though. It's just a risk not to have it.

The reason the mesher order is relevant is because it shows what is considered fair and usual in this situation. That's exactly the advice I was looking for.

It's also how we've been living for the last few decades. I didn't earn enough for the mortgage alone and the house wasn't a big enough asset to sell and give us both somewhere to live together with the children and so we agreed to both stay on the mortgage but I'd live in the house with the children and take over all costs associated with it but when the trigger point (youngest reaches 18) happens we then sell it and split it then.

So when our youngest was approaching 18, I spoke to my ex about what he wanted to do and how we were going to manage things going forwards and if he wanted to sell the house. He suggested he keep his share in the house a little longer so youngest has a base while at uni and maybe just after and it makes sense that his financial investment in the house should be appreciating in value to some extent.

It helps because on a mesher order I can see it's usual that the investment does appreciate over time on the house and so it's a 60/40 split on final sale.

This means I now didn't go and say to ex husband my memory of the agreement which is different. I'm so glad I didn't as it would have been me being unreasonable. I realise now I probably misunderstood at the time we agreed with the mediator (big misunderstanding) but these things do happen and it's the risk on not getting it legally agreed at the time. This is why I wanted to consult the mumsnet hive mind :)

I think you’re in danger of doing yourself out of a fair settlement.

He couldn’t cope with small kids, so you were left to raise them almost entirely alone, 13 days out of 14?

You had to do all the work. draft in your mother for childcare, and compromise your earning capacity and ability to pay into a pension for many years.

Of course it is not fair if he gets his entire pension and 40% of current equity in the house.

I would go back to what the house and the pension were worth when you split. As I understand it, you would have been entitled to at least 50% of both, possibly more, as you were doing all the child rearing.

Certainly don’t settle for any less than your understanding of the agreement at the time, which still seems to be in his favour.

You could have argued at the time that you got the house and he got the pension, if the values were similar.

Well I paid a family law solicitor who suggested we just carry on as we are and only to come back if we can't agree. She suggested that since we've agreed on all things financial over two decades post divorce and there hasn't been anything agreed which has been to the financial detriment of the other, there is no reason why we can't continue with this and save on legal costs.

Yes it does leave us open to risk but only if either of us were likely to be unreasonable or unfair to the other at some point in the future but this is very unlikely. Given it seems that his understanding of what we agreed is fair and reasonable, we can continue with that agreement. It's likely I misunderstood at the time.

We could potentially when we instruct the conveyancing solicitors at the point we sell the house instruct a family law solicitor to draw up a legal document then saying that the house sale represents the final division of assets and there is no further claim able to be made on the other.

There are lots of different versions of a mesher order.

Why is there so little equity. House prices have increased by about 50-70% in the past 20 years. Thats below the rate of inflation. The value of £280k from 2006 would be more than over 1/2m based on inflation.

The only way investing his money in property was beneficial was if he lived in it. But he had to pay rent.

Did you have an interest only mortgage and live somewhere with low house growth in 20 years?

Yes 13 days out of 14 I'd look after them. His autism meant he really couldn't cope with the noise and chaos of small children and I was left with almost all the childcare even when we were together.

He also couldn't empathise or work out what was normal for small children and so he wasn't really safe to look after them by himself - for example he'd not think to check if a pool was shallow enough - if he could touch the bottom then he didn't think that a small child is smaller and so won't be able to touch the bottom. It sounds crazy but his brain just doesn't really work that way so I taught our eldest to check for that kind of thing to keep them safe. There were many incidents and it was exhausting and I felt unsupported and started to feel more and more resentful and hurt.

When he told me he was struggling with feelings for his boss it was a final nail although we did try counselling but then he couldn't think of anything positive about me. Now the children are older and he's chilled a bit and accepted he's definitely autistic it really helps him be more reasonable.

He actually checks in with me now more on what is normal and what is not as he realises he makes mistakes on things like that.

I will find out some figures on his pension at the time we split and what it's worth now compared to house value then and now. I was severely compromised on my ability to pay into a pension but also I had thought all this time that I had extra equity in the house which was ringfenced and that was my pension. I do think I most likely misunderstood at the time but I'd have wanted a 70/30 split had I realised what I was agreeing to. I can also see that now I'm staying in the house and we're not selling so our youngest still has somewhere after uni that it is fair that his share does appreciate in value as he could force.a sale now as both children have reached 18.

@LemonTT the house is not big, and in a location where the value does have a top end value no matter what work you do on the house etc. It was on an endowment and I couldn't afford more than the interest only payments as a single parent. I had thought I'd sell and pay off the mortage with the equity and then either buy a much smaller retirement flat or rent if there's not enough even for that.

Houses near to me have gone down in value recently and not up. Definitely not over 500k as a house really near to me and almost identical to mine sold just recently for 410 although it was on for 500 and we bought for around 200k in early 2000s.