Divorce - second opinion please!

[siblinginapickle]

My sibling's spouse has asked for a divorce. Sibling (DS from now on) has seen a solicitor and has had some advice but I know there are really knowledgeable people here so I thought I would ask if this sounds right - or if they should be looking for another solicitor.

Here's a quick overview:

• DS has been married to their spouse for just over 3 years and they lived together for some time before that (5-6 year-ish?).
• Spouse moved in with DS, to a house DS had before they met. DS paid off the mortgage before the marriage, spouse not named on the deeds. Spouse never contributed financially to the mortgage, though they have contributed to the maintenance of the house, mostly with labour. DS has largely supported spouse even before marriage due to injury (spouse off sick and on benefits during these periods), spouse had no assets before marriage (or after). No pension that we know of.
• DS has a middle management job, mid-5 figures but a good pension as has had good employers in the past. Both in their 50s, no children together.
• DS started winding down work, as their adult children are fully independent and the mortgage is paid off.

Solicitor's advice:

• As they lived together for some time before marriage, it doesn't qualify as a "short marriage", so starting point of split of assets is 50/50;
• Spouse is entitled to enough money to get a mortgage free house, min 2 bed (flats not acceptable) in a similar area where they live now;
• Spouse might be entitled to more than 50% because their injuries mean they can't work, DS might be liable to spouse maintenance payments.

DS thinks spouse should get a portion of their assets, but is struggling with the advice. They don't understand why spouse is entitled to the keep the standard of living they have now, which is mostly funded by DS, when DS won't be able to keep theirs: they will have to sell the house and move to a much cheaper area (or get a mortgage, which they don't think they will be able to because of their age and the fact that they are working fewer hours now).

Spouse has made a financial proposal (more than 50%), I think DS should counter propose but DS is scared of rocking the boat and upsetting spouse. So, I really wanted was to check is if the solicitor's advice is correct. DS has convinced themselves that it is what it is, but is now fretting about spouse being entitled to half of any inheritance they get (don't even get me started on this!) so I thought I would ask the wisdom of MN - is their solicitor right or should they look for help elsewhere?

TY

Sorry for the length, tried to keep it as short as possible but if any info missing, just ask.

50/50 is a start point but can move with circumstances.

They are right about the cohabitation counting so short marriage principles don't apply.

The starting point is 50/50. They may go up from that if needs dictate. If spouse has not been able to work then that may be a factor.

Spouse is entitled to have their housing needs met. I don't believe this includes a 2 bed or a particular area.

The issue here is that If spouse has no pension that may increase their needs for capital not decrease.

He's welcome to see another solicitor and seek a second opinion of course. But ultimately this is going to be expensive I'm sorry to say.

Thanks for your replies, is it true about the spousal support too?

Spouse is not keen on going to court and I think DS could make a fair counter proposal but she’s scared of STBXBIL because he’s got a temper 😔 he said he will make her life hell if she doesn’t accept, so she might be better off just paying to make him go away (house is not worth a lot but DS doesn’t have enough to pay him and keep it).

Ask your MP to reform the divorce laws - both men and women can lose badly from this

If he turns nasty hit him with everything and dont be afraid

@JohnofWessex metaphorically, I assume? 😅

The temper issue coupled with the incredibly strange decision from your sister to get married when she owned a house and has children who could have inherited it, to someone who brought nothing - makes me wonder if any coercion was involved in his part. This is all in his favour isn’t, the marriage, the staying together just long enough, the split up at his request…seems fishy to me.

I can’t imagine your sister would be liable to spousal maintenance. SM is a payment to level out a higher earning income with a spouse who sacrificed their career for childcare. That doesn’t apply here.

Tell your sister to make damn sure she keeps a record of everything her ex says / threatens. Then tell her to find a damn good solicitor!

The main difficulty is that there seems to be no such thing as 'correct' advice. I had to change solicitor as first did nothing, and second gave very different advice. And both solicitors' advice was radically different from advice ex was getting.

I was in a Similar position: I had paid off house before ex moved in; ex paid nothing towards the costs yet argued she deserved half of the value. My second solicitor said she had no valid claim here at all.

In the end, i got to keep my house. I did have to pay a large amount of money over for this privilege, but nothing like the full cost of a new house for ex. It didn't go to court, so who knows which solicitor was ultimately correct. I still find the settlement unbelievably unfair but I believe that it could have been a lot worse plus solicitors fees are appalling, so was just pleased to get out without complete bankruptcy.

Sounds fishy to us too, but it’s just little things like ‘jokes’/banter, withholding access to certain things… The solicitor DS spoke to said coercion or controlling behaviour is hard to prove and impossible without police involvement though.

As they lived together for some time before marriage, it doesn't qualify as a "short marriage", so starting point of split of assets is 50/50;

This is correct. Any time spent cohabiting immediately prior to marriage is counted as part of the marriage, so this is not a short marriage. The starting point for the split is therefore 50/50, but various factors could affect that and result in a different split. Note that this concerns assets available at the time of divorce. If she receives an inheritance in future, he will not have any claim on that. If she has received an inheritance recently and has kept it separate from the marital money, the courts will try to preserve it for her and will only dip into it if there is no other way to achieve a fair split.

Spouse is entitled to enough money to get a mortgage free house, min 2 bed (flats not acceptable) in a similar area where they live now;

The court will want to be happy that both parties have enough to keep a roof over their heads. That doesn't give them an entitlement to a particular size of house, a house in a particular area or a mortgage-free house. It may be that there are sufficient assets to mean he is entitled to this amount of money, but no-one can say either way on the information presented here.

Spouse might be entitled to more than 50% because their injuries mean they can't work, DS might be liable to spouse maintenance payments.

One of the factors in working out the split is the earning capacity of each partner. The courts prefer a clean split, so that there are no ongoing financial ties between the couple. This means that, if one party would be entitled to spousal maintenance, the courts prefer to award them a larger share of the assets instead. However, if it isn't possible to give them enough to compensate for the lack of spousal maintenance, they can still award maintenance.

If your sister is concerned, she could seek a second opinion. A solicitor in full possession of all the financial information is much better placed to advise than internet randoms who don't know all the facts.

This is wrong. Spousal maintenance is not confined to spouses who sacrificed their career for childcare, nor is it always available to such spouses. It is typically awarded where one party does not have enough earnings capacity to meet their reasonable needs and the other has sufficient earnings capacity to support them.

Every case is judged differently (& even the same couple could get a different financial split from a different judge, or the same judge on a good/bad day 🤷‍♀️)

But, my SIL divorced recently in similar circumstances, except a shorter marriage and everything was split 50/50, despite her bringing way more into the marriage. No spousal support though.

That’s interesting and I didn’t know that. My apologies. It surprises me though that an ex spouse should be in any way responsible for this.

Thanks @prh47bridge - her concern is not that she has to share the assets per se, it’s how the solicitor said that split would be made. I know internet randoms wouldn’t be able to advise in depth, we just wanted to know if the advice she was given was broadly correct.

DS is not a high earner and exBIL’s lack of earning capacity is temporary, but based on the solicitor’s advice he’s never going to have to work again and DS will never retire, so we were just wondering what to do next. Thanks once again, that’s a really helpful breakdown.

If his lack of earning capacity is definitely temporary, I would not expect a divorce settlement to put him in a position where he will never have to work again unless there is a huge amount of money available. It sounds to me like your sister should get a second opinion.

As stated above, solicitors can only advise from the criteria judges are bound to consider and their experience. Judges differ in their decision based on the same information.

I have even been told by a national firm that there are geographical differences when it comes to spouse maintenance.

It's horrible to have to make de idiots that are life altering in such incertainties but the best thing to do is to get as much advice as possible and then be prepared to consider options to come to a consensus to avoid potentially significant legal costs.

However you fancy its up to you