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Legal matters

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Divorce and property

7 replies

BadMutha · 01/01/2010 18:14

Happy new year all!
Hoping someone will have experience/advice on this so I know what sort of direction to go in when it all gets more formal.
Background (apols in advance for long-windedness!): left husband last June, leaving ds (9) and dd (6) with him as he has always been their main carer, and moved in to a rented house nearby to be close to kids. Things have been relatively civilised and I don't want to make him and the kids move out of the house. However, I do want to stop paying the mortgage on it as it's crippling me financially to pay for 2 houses, and he has his own income and could afford it himself, althought I don't think he could buy me out of it.
Come next June I will instigate the quickie divorce after a 2 year separation, but are we likely to be able to swing it so that he and the kids stay in the house and I have a right to some money if it's ever sold, or will the lawyers insist on a sale and split of the proceeds?
Any thoughts, experiences, advice gratefully received!

OP posts:
TinyPawz · 01/01/2010 22:10

Not entirely sure but I think that the lawyers can't force the sale of the house until the children are 16 or 18 and still in full time education. I could be very very wrong though.

pottycock · 01/01/2010 22:15

Do you pay him maintenance?

mumblechum · 02/01/2010 03:37

The lawyers can't force you to do anything - you're paying for their advice.

In your case the sensible thing would be to transfer the house into your h's name IF AND ONLY IF

  1. You have a charge registered over it (like a second mortgage so he can't sell without paying your share)
  1. The mortgage account is transferred into his sole name.

If you haven't seen a solicitor yet, you can find a family specialist on www.resolution.org.uk

mumblechum · 02/01/2010 03:38

Sorry should have specified that the charge normally ends when the youngest child is 18 or completes full time secondary education, or your dh remarries or dies, or voluntarily sells up to buy you out.

AllThreeWays · 02/01/2010 03:42

Am not sure about the ins and outs of it legally. But I would think that you could arrange to get your share of the house (50%) later on and continue paying the mortgage if you looked at it this way.

You own half a house, he owns half a house. He is living in the house therefore he rents your half from you and that pays your share of the mortgage??

STIDW · 02/01/2010 04:02

It really depends upon the circumstances.

There is a legal argument that if one party enjoys to sole use of a property and they can afford the mortgage they should pay the whole mortgage, their share and the other party's in lieu of rent for occupying their half of the property. After all the other party has their own living costs to pay.

However, there is an obligation for spouses to maintain each other and if the party left in the property is struggling and the party who left the former matrimonial party can afford to contribute they might find themselves going through the hassle and expense of court proceedings for maintenance pending the final financial settlement.

Either way if your husband is the primary carer he should be in receipt of Child Benefit, Working Families Tax Credit and child support from you.

The actual divorce and finances are treated separately and you need to ensure there is a court order settling the finances so neither party can make future claims against the other. To make an order which is agreed difficult to challenge it needs to be fair (within the s25 Matrimonial Causes Act 1973 criteria there should be full disclosure, legal advice. There is little point in economising with this.

It is possible to defer the sale of the house by the way of a Mesher order. Your interest in the property would then be held until a condition triggers a sale. The usual conditions are the remarriage or death of the PWC or the youngest child reaching 18 or finishing tertiary education. Alternatively your interest can be maintained as a chargeback which has to be paid to you on a certain date.

There are capital gains tax implications because you only have CGT relief on your main residence and as you know longer live there CGT may kick in after three years. Therfore it's a good idea to speak to a lawyer in good time to find out exactly where you stand in your particular circumstances.

BTW there is no such thing as a quickie divorce in England & Wales. Whether you use a solicitor, online company or do it yourself the procedure is exactly the same. There is no reason why you can't download the petition, Form D8, guides D183, D184, D185 and EX150 (court fees list) from HM Court Services website and complete the form yourself. You then send the form, fees and your marriage certificate to the court.

BadMutha · 02/01/2010 09:03

Wow! Thank you all for your advice. I do pay him child support but not 'maintenance' for him (he has his own, fairly good, income). Sounds like I do need to talk to a lawyer soon. Thanks again!

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