Family home

[Spinning12335]

Can someone please talk me through what may happen with the family home with divorce/ what the options are?

We own jointly and have 2 young children. They would most likely only have day visits with him until quite a bit older so I would have pretty much sole custody( he struggles with their behaviour and they are very clingy with me at bedtimes in particular).

I wouldn't be able to buy him out. We have a big chunk of equity.

I may just about be able to pay for living costs and mortgage if I extended the term and upped my hours. He earns a lot and has plenty of savings so would get another place no problem.

Thankyou so much.

Try not to panic. Breathe. There is plenty of time to sort things out.

The Courts put the welfare of the children first.

The Courts take your needs into account in financial settlement.

Make sure you have all the assets listed and valued so that you can make an informed decision about financial settlement. Keeping a cool head is vital.

There are two aspects - Divorce and Financial Settlement

Do you know what all the assets are and what they are worth?
It is most important to get all the asserts "on the table" and you need to know the value of each before any decisions are made about who gets what. For example the value of pensions.

Full & Frank Disclosure of Assets - a legal requirement
To know what a fair split of assets is and to reach a financial settlement there must be full and frank disclosure. Divorcing parties need to know what the assets of the marriage are, and what each asset is worth. Form E shows you what full and frank disclosure looks like - and that is what you need and deserve.

Form E
Look at a Form E. it is a long document in which each party sets out their assets, income, and financial needs and then they send it to each other. You can see in Form E the assets that are taken into consideration upon divorce and financial settlement, for example property (the former) marital home, pensions, stocks and shares etc. It also lists the documents you need to see that show the value of assets, for example CETVs (cash equivalent transfer values of pensions - which can be requested from pension providers).

To find out what some assets are worth an independent expert can be used. Property can be valued by an expert - estate agents, pensions by CETV and / or a pension on divorce expert (PODE) report from an actuary, and so on.

It is important to decide what needs a valuation by an independent expert and factor in the costs of these. Pensions can be very valuable – equivalent or more than the value of the former martial home in some cases. Divorcing parties might hold different types of pensions (not like-for-like, so difficult to compare without an expert). Circumstances might be complex for example an age difference or pensions in payment. One party may have stayed at home to look after children.

Deciding how to distribute assets (Section25)
When deciding how to distribute a couple’s assets and income the court has to apply a checklist of factors set by statute. The relevant statute is section 25 of the Matrimonial Causes Act 1973.

These factors will need to be applied in every case, regardless of whether you are engaged in court proceedings or negotiating your own settlement.

These are often called the Section 25 factors, which the court will take into account when deciding how to distribute assets upon divorce or dissolution.
images.ctfassets.net/o8luwa28k6k2/2cpp2mEMwBJWJLuzTiTruB/b5397e7459154fad8927826a2c99acdd/section-25-expert-guide.pdf

The income, earning capacity, property, and other financial resource which each of the parties to the marriage has or is likely to have in the foreseeable future is taken into account.

First consideration is given to the welfare (while a minor) of any child of the family who has not yet attained the age of eighteen.

The needs of each divorcing party are taken into account and as I understand it 50 / 50 is the starting point – so unequal shares based on circumstances and needs is possible, for example 60 / 40.

Not Getting Full & Frank Disclosure?
Full and frank financial disclosure is required and usually provided when Form E is exchanged. In some cases it is not forthcoming.

If after Form E there is missing information / evidence Questionnaires may be exchanged to retrieve it. - a list if questions you ask the other party and a list of the documents you need to see to know what the assets are worth.
If still missing after that Deficiencies are exchanged - a list of queries and questions to clear up nay gaps in information and a list of any documents you still need to see to know what the assets are worth.
A solicitor’s letter can be sent to retrieve financial information evidence.
A Court Order can also be applied for to gain financial information / evidence / documents of valuations that is missing / essential.

Advice & Info
These offer a free advice sessions about pensions on divorce and separation www.moneyhelper.org.uk/en/family-and-care/divorce-and-separation/divorce-or-dissolution-how-we-can-help-with-your-pension
Free advice line (busy so keep trying) rightsofwomen.org.uk

Guides on divorce and financial settlement
www.advicenow.org.uk/guides/how-apply-financial-order-without-help-lawyer

Pensions on divorce
www.sharingpensions.co.uk/penaudit3.htm
www.mediateuk.co.uk/the-ultimate-guide-to-pensions-on-divorce/
www.nuffieldfoundation.org/news/new-good-practice-guide-addresses-shortfall-in-understanding-of-how-to-treat-pensions-on-divorce
Valuation of pensions – pensions on divorce expert report
www.collinspensionactuaries.co.uk no relation – useful website
www.collinspensionactuaries.co.uk/pension-data-collection/ templates for information required

Legal advice
You can represent yourself as a litigant in person. You can get advice from solicitors/barristers. You can be represented by a solicitor / barrister.

Many people are litigants in person in their cases - and they get legal advice when they need it. Some find solicitors who will agree a retainers for short pieces of work rather than paying hourly which can become very expensive and quickly. Some are represented by a solicitor or barrister.

This link gives you an indication of hourly rates for solicitors
www.gov.uk/guidance/solicitors-guideline-hourly-rates
Some organisations offer free advice from solicitors and barristers rightsofwomen.org.uk/get-advice/ On their FAQs page…”Our Legal Officers and Volunteer legal advisors are all solicitors and barristers”.
Some family solicitors offer an in initial free consultation and some a fixed fee rather than hourly.
Some barristers can be directly instructed e.g., via Clerksroom Direct

Mumsnet suggest www.advicenow.org.uk/tags/separation-divorce-and-dissolution-civil-partnerships

Arm yourself with as much information about how the divorce and financial settlement process works. The advice now website is good for this.
Get full and frank disclosure so you can make informed decisions about your financial future.
Best not to make hasty decisions based on panic about losing the family home.
Look after the old(er) woman you will become.

Thankyou so much for all of the information. I will take a look through all of those websites. I'm trying not to panic about the house but it's hard because I know the kids will really need the stability of home and school.

@ResponsetoOPFamilyHome

Whilst what you say is correct you miss an incredibly important point that I've never read online but heard from every solicitor I consulted during my divorce.

Yes, the needs of the children come first. But - and this is an incredibly important but - those needs are not considered first to the complete exclusion of the needs of the divorcing parties. For example, a NRP is not expected to sofa surf, live with parents or rent an inadequate bedsit for years on end in order for the children to reside in an owner occupied house. Also, courts have to make settlements that are fair. They will not make either party suffer undue hardship such as the above not least because of the detrimental impact this could have on the children's relationship with one of the parties. The needs of the children are not just a roof over their heads.

Courts can and do order a sale of the FMH if there is no other way for the divorcing parties to BOTH be able to house adequately to their needs. Especially where the mortgage is unaffordable to the RP and the NRP is not earning significantly above the national average, it is more common for the house to be sold these days. A more likely outcome is that the RP gets more than half the equity to rehouse.

And yes, moving to a cheaper area might be expected to, especially if the RP is insisting on doing a job that is menial and low paid and had little prospect of affording to run the home on their own.

Not insisting on doing a menial low paid job. It's one I'm trained for but has a ceiling on earnings. It's actually above the national average. I could just about afford it on my own on full time hours but would need to extend the mortgage to do so. I haven't included any maintenance in my sums.

Husband earns £70,000 with potential to go much higher as career progresses. He could easily get another mortgage if I cover this one. Moving to a cheaper area means moving schools and house for kids- where's their stability?

Ex would not want a family home unless he wants the kids regularly ( very unlikely to want overnights and may not actually be allowed anyway).

I think he would be open to us staying here and him getting his share when the kids are older as it is an investment and I know he always wanted to invest in property one day anyway.

Hi spinning
Not read all of the responses but hope to reassure you with my experience.
I too felt like you, and would have done anything not to uproot kids and lose the family home.
ExH and I did mediation and (to my surprise) he early in said his goal was that we both had enough to own our own properties. And that if he could do so without us having to swell the family home that was (also) his ideal.
So that's what we achieved. My mum died a year or so before we divorced which (terrible terrible as it was) meant I had a cash amount of inheritance that he was willing to accept as the equity buy out, and he has left 17.5% in the property - a mesher order - and the financial agreement states I need to sell and release this to him when our youngest is 18 (he was 8 at time of settlement).
I also took in the mortgage myself (and mortgage provider took his maintenance payments into account, plus I upped my hours to FT to be able to do this).
I know - as am told - that the courts favour a clean break. I think in our case it was a common goal that the kids did not have to leave the family home, and so we managed to amicably find a way to make that work.
I do not worry about not having a 'clean break' - it was absolutely worth it to me.
I hope this reassures. I know it's not the norm. But where there is a will - and I guess if it is the will of both parties - there is a way.
Good luck, I feel for you and remember feeling exactly the same way.

@BetterFuture1985 I hardly think teaching is menial or low paid (clearly it's sufficiently to recognise that it's a skilled profession but it is a profession therefore paid well above the national average).

And in this case it sounds as though the OP could afford to take on the mortgage of the family home, and that even if the husband relinquished his claim in it he might well have a 40-50% share of overall assets by retaining savings, investments and pensions. It's impossible to say - as @ResponsetoOPFamilyHome pointed out - until all assets have been valued. But on the face of it, it doesn't sound like it would be a particularly outlandish settlement from a legal perspective, depending on the circumstances. Certainly not beyond the realms of possibility.

Courts prefer a clean break financially and that'll generally be better for you long-term, too. But from what you've said that could still be possible with an equitable settlement if as you say there is significant money in joint savings, his pension and investments etc that he could keep in lieu of equity. A solicitor will be able to set out what is reasonable quite easily once you have all of the valuations.

I'd discuss with your mortgage lender as soon as possible - in my recent experience - I earn a lot more than STBEXH - actually about the same as your husband - 50% equity in the house and I earn twice what I did when we first bought the house. Despite all this and me easily being able to cover additional mortgage payments to buy him out the bank said no. Lending criteria has tightened up hugely and banks seem very nervy

On a low paid part time wage OP I can't see how you'd fare any better than me?

I'm in the same situation in that no suitable local properties either rented or to buy - I'd have to move away so I need to stay in family home and so have agreed with ex he won't get his monies for a couple of years

From you responses I highly recommend you try to amicably sort an arrangement whereby you forgo going after the savings in his name in return for the house but you need to be able to put it into your sole name - find out if this is possible

I will speak to the bank. Maybe they can tell me if I'd get a mortgage for somewhere cheaper too- although kids would need to share a room and travel for school etc.

@isthistheendtakeabreath I'd be on full time wages but have worked out outgoings( bar food)and mortgage would still be 80% of my income........

I would be happy to downsize and move area later on once the kids were out of school.

@sevenplusquery thankyou for your response. Maybe there is some hope. I'm sure there're enough assets for him to keep a smaller stake in the property. This would also mean I'd have enough to downsize later too.

I didn't say teaching was menial or low paid; I was making a more general point that if a divorcing party decided they were going to do something part time and minimum wage when they could do and earn more then they might be expected to deal with the consequences of that, rather than their ex.

Moving to a cheaper area means moving schools and house for kids- where's their stability?

In their new surroundings. Lots of DC move house and move schools, and they will be fine. Yes, it's a major jolt, but one they can cope with, and it'll be your job to get them through it positively

All valid arguments but not conclusive. £70k is not a particularly high income and he is very unlikely to get another mortgage if he is stuck on yours. And no court is going to start gazing into a crystal ball about what parties might earn in the future. They might consider what a trainee might earn when qualified in the foreseeable future (e.g. a trainee teacher or nurse becoming a teacher or nurse) but they're not going to gamble that someone on £70k might get a promotion.

Kids move school all the time and they adapt. Unless there are additional needs don't let that tie you to a particular house/area.

Agree with others that it's best to have a clean break financially.

Op has already stated one of her children is autistic. It is much more difficult and potentially damaging for an autistic child to have the upheaval of moving schools/ house/ both.

That is true but with the right scaffolding in place it needn't be a major issue. The main stability comes from mum.Change is inevitable in life unfortunately.

That is true but with the right scaffolding in place it needn't be a major issue.*

Possibly, impossible to say from the information provided here.

*The main stability comes from mum.Change is inevitable in life unfortunately.

To some extent, yes. But if a child with SEN can be protected from unnecessary stress and change (or indeed any child) while still reaching an equitable split for the parents - as might be the case here - then that is to be welcomed, surely.

The critical word there though is "if." As I said earlier, a court will go to great lengths to try and do what is best for the children but they will not do that to the complete exclusion of the other factors. They are not going to force one parent to sofa surf and be unable to spend time with their children so that the other can keep the family home for example. It's also not necessarily in a SEN child's best interests to lose proper contact with Dad because Mum refuses to get off her backside and improve her mortgage capacity and become self sufficient.

I am self sufficient thankyou very much!!! How rude. The point is we bought in this area as joint applicants- managing a mortgage, childcare costs and everything else with cost of living how it is prices out a lot of single earners.

There is no chance he will end up sofa surfing trust me. And if access is denied it will be because someone else had made that judgement not me.

@BetterFuture1985 you seem to think I'm trying to screw my husband over and I'm really not. I'd actually rather not even split up tbh.

The critical word there though is "if." As I said earlier, a court will go to great lengths to try and do what is best for the children but they will not do that to the complete exclusion of the other factors. They are not going to force one parent to sofa surf and be unable to spend time with their children so that the other can keep the family home for example. It's also not necessarily in a SEN child's best interests to lose proper contact with Dad because Mum refuses to get off her backside and improve her mortgage capacity and become self sufficient

What? Where has anybody suggested that? 🤣 You're making stuff up that's not remotely relevant to the OP's situation. If this is some kind of weird chip on your shoulder about an unrelated issue I suggest you start your own thread.

You're not self sufficient though are you? The very premise of your question is "how can I carry on living in a house that no bank will lend me enough to own on my own?" You're essentially asking how to squat on someone else's mortgage capacity for the foreseeable future. That's not being self sufficient.

I also don't think you're trying to screw anyone over. I just think you're heading in a problematic direction because you don't have a full awareness of the financial consequences of these aims for yourself or your ex.

The likelihood is that if you successfully stayed in the family home, he would not be able to get another mortgage big enough to buy himself. He would be forced to rent, possibly until you're children are 18, which costs more than owning and is entirely dead money. You on the other hand will be on a low-ish income and be subject to having to sell or buy him out at future market prices when your youngest is 18, something you are unlikely to be able to afford then if you cannot afford it now. You might well find you are unable to buy anything at all at that point and have to rent for the rest of your life.

This kind of financial mess should only be an absolute last resort.

It's actually a response to advice on this same thread that was incomplete and therefore misleading.

I found the case I was looking for. M v B (Ancillary Proceedings: Lump Sum): CA 15 Oct 1997:

The couple had two children aged 10 and 6 and the question was whether the wife should have a house which cost pounds 210,000, leaving the husband without enough to buy a property of his own, or a house costing pounds 135,000, leaving the husband pounds 75,000 to buy a property of his own.

Held: When apportioning property where children in family, both parents are to be provided with a home if at all possible: ‘In all these cases it is one of the paramount considerations, in applying the section 25 criteria, to endeavour to stretch what is available to cover the need of each for a home, particularly where there are young children involved. Obviously the primary carer needs whatever is available to make the main home for the children, but it is of importance, albeit it is of lesser importance, that the other parent should have a home of his own where the children can enjoy their contact time with him. Of course there are cases where there is not enough to provide a home for either. Of course there are cases where there is only enough to provide one. But in any case where there is, by stretch and a degree of risk-taking, the possibility of a division to enable both to rehouse themselves, that is an exceptionally important consideration and one which will almost invariably have a decisive impact on outcome.’

Essentially, you can break this ruling down to think of a series of questions:

1. Is there enough money, by a stretch, to both buy new homes, albeit smaller ones? Yes, then that will be the outcome. The division of equity will depend on the needs of each party. No, move to question 2.

2. Is there enough money for one party to be a homeowner and the other to rent suitable accommodation? Yes? Then a Mesher Order is possible but increasingly unlikely. This is because of the undesirable long term consequences of these orders for both parties but they will be used if there is no other choice. However, it's also increasingly unlikely that someone can stay on a mortgage and pass credit checks to also rent suitable accommodation. So, if the answer is no then.

3. The house is ordered to be sold and both parties can rent.

I think you have some degree of chance of a Mesher Order but it will really screw up your ex's finances for life so don't be surprised if he plays hard ball on absolutely everything else.

He can’t have 2 mortgages and 70 k is not as much as you think to run two homes and support kids .

you need to split everything in the divorce and you will need to get a mortgage you can afford or rent, I am sorry.