What is the progression re division of finances?

[sneezecakesmum]

Its fairly straightforward. BIL and ExP separated since christmas. ExP in the house with DD (nearly 16).

ExP unreasonable and devious in the extreme so BIL just wants a clean break and if poss DD to live with him. He can't talk to DD as ExP preventing all contact,(removes SIM from phone, opens mail etc), and DD too scared to defy mum. Previously she said she wants to go with dad, but will mean leaving her town.

ExP has made it clear she will not give up the family home without a fight despite being able to get a loan/small mortgage and buy a 2 bed flat with the equity. BILs solicitor thinks its what BIL should ask for as he is living in one room (a step up from his previous homelessness)!

BILs solicitor suggested mediation:-

ExP said 'i dont think anything can be gained by mediation but if you would like to get your solicitor to arrange it and you pay for it, I will give it a go but somehow can't see it working!' We think this is a ploy to waste his money, so very dubious re mediation at his expense. BIL thinks just go for it, no to ing and fro ing with solicitors because she will never co-operate.

Does it go like this: he instructs his solicitor to write to her solicitor with his proposals. Her solicitor discusses it with her - she will reject the sale and division 50/50 of the property. Then what? Does it go to court to be decided there? If she is told to sell the house but refuses is she in contempt of court? What penalties can they levy on her?

Looking at another thread this was mentioned 's14 of the Trust of Land and appointment of Trustees Act 1996'

Would this be the section forcing ExP to sell the house if she denied the court order to sell?

It is usually worth giving mediation a shot. Anger is frequently a feature of divorce but often the anger is a secondary emotion to the more primary feelings of hurt , fear and financial uncertainty. Sometimes with a skilled mediator any hostility can be diffused over two or three meetings and then progress can be made more quickly and constructively. Mediation is usually less expensive than going to court and does the least damage to long term family relationships.

The first step is resolving the issue of where the daughter is to live. I'm assuming BIL wasn't married and a court may decide that a property should be made available to house dependent children until they reach maturity. It is fairly complicated and a solicitor in possession of all the specific facts is in the best position to advise where BIL stands and what options there are. Because it is a complicated it can also be expensive and it is in everyone's interests to try and reach agreement.

Only if no agreement can be reached through negotiation /mediation will it go to court and even then agreement is often reached during proceedings. Ultimately if someone doesn't comply with a court order it's possible to apply for enforcement such as vacant possession of a property and control of sale but BIL will need to cross that bridge should he get there.

You refer to her as ExP. Were they married? That has a major bearing on how this will pan out. But at the end of the day if they can't agree the division of assets between them it will go to court.

Never married. An extremely unreasonable exp. A doctor friend of my DH commented she sounds like a sociopath. As a nurse I thought it a good possibility. Looked it up and she ticks all but 1 box for antisocial personality disorder! Ive known her at a distance for 20 years, she will never be reasonable, lies, steals, manipulitive,superficially socially skilled, vicious when thwarted. I can't say all there is to say about the emotional devestation her DD is going through, but we all KNOW she will never be reasonable - but can she use mediation (paid for by BIL as she says it should be) just to delay the inevitable and still end up in court? We are supporting BIL emotionally but just want him safely away from her. Sorry if it sounds dramatic but I could tell you privately what she has done.

Never married. An extremely unreasonable exp. A doctor friend of my DH commented she sounds like a sociopath. As a nurse I thought it a good possibility. Looked it up and she ticks all but 1 box for antisocial personality disorder! Ive known her at a distance for 20 years, she will never be reasonable, lies, steals, manipulitive,superficially socially skilled, vicious when thwarted. I can't say all there is to say about the emotional devestation her DD is going through and BIL too, but we all KNOW she will never be reasonable - but can she use mediation (paid for by BIL as she says it should be) just to delay the inevitable and still end up in court? We are supporting BIL emotionally but just want him safely away from her. Sorry if it sounds dramatic but I could tell you privately what she has done.

Would his solicitor force mediation on him, can we just go to court and get it over with. I'm sure thats where it will all end up anyway

Maybe on reflection the solicitors can sort it out between them. BILs solicitor has advised him regarding the house, property, dd etc. and BIL is happy with what he is entitled to according to his legal advice. He could not cope emotionally I think with mediation, though he has become much stronger over the past few weeks If she pays equally for the mediation he might have the strength to cope. I believe he is not allowed anyone else in for moral support.

If mediation depends on reasonable behaviour then it won't work.

If it is just a way of everyone putting their position and sticking to it is it a waste of time and money.

At the moment DD is taking the brunt of her mothers anger (not anxiety, not fear - its not how she reacts) Somehow BIL will have to meet DD in secret to ask if she will go with him and leave all her friends? That in itself is problematic.

We're all just walking on eggshells around ExP, including her son and his partner (who says she's scared of her) DH and I are fed up with her games and the escalating costs. well it is late....

Sorry but I worked for a considerable time in mental health and I'm rather shocked that a doctor would "diagnose" a personality disorder without having examined someone. Using diagnostic tools requires specialist knowledge, experience and objectivity. Even then seasoned mental health professionals can have great difficulty in differentiating between different conditions, particularly personality disorders. In any event a label isn't that important, it is behaviour that matters.

If someone is being that unreasonable I agree it is impossible to mediate and appease them. Your BIL can apply direct to court for an order but if he tries mediation and it fails he should have an idea of what can be agreed, what might be compromised and what issues cannot be agreed. That saves time and money during proceedings. Correspondence in negotiations may be used as evidence to strengthen his case and show he is being reasonable. As I said above these cases are complicated and really require someone with legal knowledge, experience in presenting cases and cross-examining.

There is a general court rule that the unsuccessful party pays the other sides costs which can easily be in excess of £10k. That is why it is in everyone's interest to reach a settlement out of court if at all possible.

As they have never been married the basic principle is that anything in his name belongs to him, anything in her name belongs to her and anything in joint names must be split 50/50 unless something else was agreed (although agreements to vary the split are difficult to prove unless there is something in writing). Having said that, if the house is in one person's name it is possible for the other to acquire an interest by, for example, contributing to mortgage payments. The fact there is a child involved also complicates matters in that the court will want to be sure that she has a roof over her head.

As STIDW says, the more evidence your BIL can give to show that he is being reasonable and she is not the better.

It is very hard to prove an interest in a house merely by contributing to a mortgage. There has to be evidence that this is linked to an agreement or understanding that this would entitle the payer to an interest in the property. Alot of the time people pay towards a mortgage just to pay their way, and not because they have acquired an interest.

The myth of common law spouse adds to the confusion here. There's only one sure way to acquire a claim to your partner's property - marry them!

it might be worth the cost of a mediation session just to prove it wont work...

contact - if she refusing to mediate/negotiate/refuses him contact then maybe he should apply for residency in the court. might be only way. he should speak to FNF

then she will have to discuss and talk.

property - yes its TOLATA and childrens act.

starting point -unless proof of either one paying large amounts into the propeorty - will be 50/50 split.

if DD is residing with her she could ask for more held in trust and reverting to him when dd reaches 18.

if he has residency then 50/50... ? or he could get more?

maybe he needs to set the ball rolling for both issues - apply to court for residency/contact with dd and also apply under TOLATA re: property and get a first hearing on residency and contact before the first hearing on sale of property.

Agree with Resolution. Contributing towards the mortgage may indicate an intention to share the equity but it is unlikely to be enough on its own. I definitely wasn't clear enough on this. Sorry. Memo to self - stop posting at 1AM!

BIL has deeds to the house which says it is a 50/50 split (joint names dating back to when he bought out her exH.) His solicitor says the split should be 50/50. The equity is £100-110,000 so both could get somewhere to live with a small mortgage/loan. BILs solicitor says DD and ExP or BIL (whoever gets residency of DD) can buy 2 bed flat which is acceptable to BIL, but exP wants to keep the house even if DD goes with BIL!

STIDW. I am not suggesting ExP personality will impinge in any way on a financial split etc just that she has stated she wants to get BIL to pay for everything then she will just refuse to cooperate! It is just to say how unreasonable and manipulative she is and is it worth wasting money on mediation - but I can see it as a way of establishing in what way she thinks she will keep the house, BILs solicitor was pushing for mediation so maybe he can see this as a starting point.

Having sat with MH nurses in the wee hours in a quiet A&E drinking coffee and chatting, personality disorders did come up and as a nurse myself I can see most of the traits in BILs ExP and it makes me realise what an uphill battle he has always had. Also why her first children became heroin addicts and BILs children ran away from home or were thrown out by ExP. Sorry - (note to self) a) don't post twice; b) stop whinging about the soap opera we've got embroiled in!

ExP has offered 10K for his share of the house. Is demanding £350 a month CM despite the CSA recommendation that it is £108-£150. He has offered to start paying CM at that rate but she has torn up the letter and forms he sent (as advised here re private agreement!). Put his clothes in bin bags and poured bleach on them, emptied 2 1/2K from his private bank account..etc etc. He knows she will never be reasonable.

What put BIL off was a friend of his paid £300 for mediation and his ex turned up and said, 'you're talking rubbish' walked out, and his friend was left with a bill for zilch!

Will tell BIL to ask solicitor next week (now off skiing somewhere) what mediation involves, costs etc. BIL cant consider residency at the moment as living in one room of house with three other men. If he gets the equity he hopes DD will just pack her stuff and leave town with him!