You can still get divorced throughout the current Coronavirus pandemic. I am able to offer telephone consultations and the courts are having hearings remotely via Phone or Skype.

What are the options for dealing with the former family home on divorce?

The family home is usually the biggest and most important asset that a divorcing couple will own. Here I will set out the ways in which the property can be dealt with on divorce.

Selling the family home

Wherever possible, the court will look to achieve a financial clean break for the parties when deciding how the matrimonial assets should be divided on divorce. This means the parties’ assets are split between so that they can both move on with their lives without any ongoing financial ties to the other party.

If there is sufficient equity in the property to sufficiently rehouse both parties’ needs then the courts are likely to order the marital home to be sold and the sale proceeds to be divided in a split that meets the parties’ needs.

If there is not enough money available to enable one of the parties to take over paying the mortgage and utility bills themselves, then a sale is probably going to be unavoidable.

Transfer of the family home

A transfer of the property means the transfer of the legal and beneficial ownership of the property into the sole name of one of the divorcing couple. This would facilitate a clean break.

An outright transfer of the matrimonial property could occur when a spouse still residing in the family home “buys out” the other spouse. Alternatively, a spouse residing in the family home may wish to forego any entitlement to maintenance payments or pension entitlements in order for the property to be transferred outright to them because the main priority is to secure the family home. This would facilitate a clean break.

Another possible scenario is when an ex-wife has a residence order or is the agreed main carer in respect of the child/children to the marriage and the ex-husband has limited financial resources other than his share in the matrimonial property. In such circumstances, it would be unlikely that he would be able to support his ex-wife and children and the best way of stabilising the children and the ex-wife’s future would be for the ex-husband to transfer his interest in the property to the wife outright.

Trust of Land (Mesher Order & Martin Order)

Sometimes a clean break simply isn’t practical. For example, when a home needs providing for one of the parties (and their children) and their financial circumstances do not allow for a sale or an immediate outright transfer of the former matrimonial home. It may be possible to postpone the sale of the house until a future event is triggered.

These types of orders are most commonly known as “Mesher & Martin Orders”, following the names of the first legal cases in which these types of orders were made.

A Mesher Order is made to provide a home for the children of the marriage. It is an order that postpones the sale of the family property until a specified triggering event occurs e.g. when the youngest child turns 18.

A key advantage of this type of “deferred trust” is that it enables one of the parties and the children to remain in the former family home following the divorce and but also retains a financial interest in the family home for the non-occupying spouse which will be realised at a later date.

A Martin Order is a similar to a Mesher Order but the triggers for sale are not based upon the children. The future sale of the house could be triggered if, for example, the occupying spouse remarries, cohabits for a specific period of time, chooses to leave the property or dies.

Mesher orders can understandably be an attractive option in the short term because they allow the occupying spouse to provide security and minimum disruption to the children’s home life at a time which is already very emotionally difficult for the family.

However, a spouse considering this option should think very carefully about the longer-term implications. What may appear a sensible financial decision now may not transpire to be such a sensible decision when the trigger event eventually arrives and it is time to pay out the former spouse for their interest in the property.

Mesher Orders have been criticised by some on the basis that they only delay the inevitable and often result in problems for the occupying spouse at the time the property must eventually be sold. It may be the case that there is simply not enough equity in the property at a later date to allow the occupying spouse to be re-housed. They may also find obtaining a mortgage at a later stage of life simply may not be an option.

It is certainly always prudent to consider other options during negotiations and if it is possible to facilitate a clean break by reaching a negotiation for a transfer of the property then that is certainly a more secure option.

Need to find a solution when dealing with a difficult ex on divorce?

Have you been separated for some time but have been putting off getting divorced because you cannot face the hassle you know will come from your ex when trying to finalise your divorce and financial settlement?

It is time to seize the day and get things moving.

The importance of seeking legal advice at the earliest opportunity during a divorce or separation

As legal aid is now only available in very limited circumstances for divorce, child contact and divorce financial settlements I offer a range of fixed fees to give clients peace of mind and certainty about their legal costs.

Reaching a divorce agreement

Some couples are able to reach an agreement themselves, but it is sensible to have the agreement put into an order which is approved by the Court so that is can be made legally binding. I can draft the court order and liaise with your ex-partner to have the agreement signed to formalise the settlement.

I offer a fixed fee where an agreement has already been reached, therefore you will have certainty about your legal costs from the start of the process.

I understand that breaking up from your partner is one of the most difficult situations to deal with and often people need assistance and guidance in reaching an agreement and sometimes negotiation is required.

Not everyone knows that pensions can also be divided in a divorce settlement and they are often one of the most valuable assets in a marriage.

I can advise you on what would be a fair settlement and if necessary, I can obtain independent financial advice from experts such as actuaries, accountants or financial planners. 

Divorce and child agreements

Following separation, sometimes there is a breakdown in the relationship between parent and child which is extremely tough for all involved.

I encourage parents to work together to reach an agreement on their children’s care as the parents often know what works best. If the result is left up to the courts to decide, often both parents leave feeling like they did not achieve what they wanted or expected.

The Family Courts always focus on the children’s best interests, but parents find court hearings daunting and it often creates a further divide between the parents.

I realise that after a breakdown of a relationship, it is not easy to talk to your ex-partner, but I work hard on ensuring the children do not suffer from that. If an agreement cannot be reached, then mediation may be a useful tool for your family as court should be the last resort.

Government set to introduce ‘no fault divorce’

Current Rules

Currently in England and Wales there are 5 official grounds for petitioning for divorce.

3 of the grounds involve attributing blame to one of the parties. This allows divorce proceedings to begin immediately.

These 3 grounds are:

• Adultery
• Unreasonable Behaviour
• Desertion

The other 2, which do not involve blame take longer: where the parties have been separated for 2 years and consent to the divorce or where the parties have been separated for 5 years which does not require consent.

What is a no-fault divorce?

The justice secretary confirmed in 2020 that he will bring in legislation for a no-fault divorce removing the need for separating couples to wait for years or allocate blame for the breakdown of their relationship.

Laws providing for a no-fault divorce will allow a family court to grant a divorce in response to a petition by either party of the marriage without requiring the parties to blame each other for the breakdown of their marriage which often causes conflict between the parties.

Proposed Changes

The government proposes to remove the ability of one of the spouses to contest a divorce in court which they hope will help prevent abusive partners from making the process more difficult.

Irretrievable breakdown of the marriage will be retained as the sole ground for the divorce but the requirement to provide evidence of a ‘fact’ will be replaced with a requirement to provide a statement of irretrievable breakdown.

The two-stage legal process of decree nisi and decree absolute will be retained to ensure that the parties have time to consider their decision. There is also a suggestion of a minimum timeframe of six months from petitioning for divorce through to the final stage.

Divorce and the family home

Divorce and the family home

When marriages break down and the divorce process is finished, there’s one big question on everyone’s mind: who gets the house?

This is particularly complicated for families with children, who are often faced with so many options they don’t know what to do.

I understand that it’s important to face the facts in this situation in order to move forward. Here I cover the general points that tend to emerge when tasked with negotiating the fate of the family home.

Children are the priority

The welfare of any children caught up in a separation or divorce is paramount. Where possible, the Court will want to achieve stability for the children and it is preferable for the children to live in an owned home. However, this may not always be affordable.

In a divorce, provisions may still need to be made for children aged eighteen and over who are still living at home whilst they are still dependant on their parents.

Financial support for a child may now extend until they finish full-time education. Depending on individual circumstances, parents may need to provide occupancy for the child up until they finish their first degree, however this is rare and the trigger point for the sale of a family home usually occurs when the youngest child leaves secondary education.

How the court decide what happens to the family home.

There are a range of Orders which the Court can make in relation to the family home, including the following:

• Selling the property and dividing the proceeds;
• Transferring the legal and beneficial ownership from one party to another;
• Postponing the sale of the home to a specified date, e.g. when your youngest child reaches 18, at which point the proceeds of sale will be divided.

In addition to the welfare of the children, the Court will the Factors detailed in Section 25 of the Matrimonial Causes Act 1973 which include:

1. The party’s current income and future earning capacity;
2. The party’s current and future financial needs, obligations and responsibilities;
3. The standard of living enjoyed by the family before the breakdown of the marriage;
4. The age of each party to the marriage
5. The duration of the marriage;
6. Any physical or mental disability of either of either party;
7. The contributions each party has made to the welfare of the family, including looking after the home or caring for the family;
8.  

If there is money tied up in the property, the best course of action may be to sell it in order to best provide for the children.

However, sometimes, it may be agreed that the family home should be retained for several years to provide stability for both the children and financial continuity for the parents, however, this is dependent on the individual circumstances of the case.

There is no ‘one size fits all’ approach to how the family home will be treated on divorce which is why it is important to take legal advice on your individual circumstances as soon as possible.

What about the future?
In some cases, when children are particularly young and circumstances allow, it is possible for legally binding agreements to be made by the court so that the property will be sold when the youngest child turns 18.

It’s possible to agree to the particulars of a future sale many years before it occurs, as long as relevant evidence is presented. You may need to establish mortgage capacity (or lack thereof) and agree how the proceeds of the sale will be divided when the house is sold.

Conflict
Conflict can arise when trying to agree the terms of an agreement for the current or future sale of the property and how the equity will be divided.

The starting point of the division of the matrimonial assets is a 50/50 split but applying the Section 25 criteria above may mean that the assets need to be split unequally to achieve a fair outcome.

For example, one party may argue that they should get a larger share because they earn less, while another may push for an increase in their share to account for the fact that they’ve had to wait so long to receive anything.

It’s then up to the lawyers to negotiate and try to strike a balance between the two conflicting positions. They may do this by factoring in other financial claims such as offsetting other assets like pension sharing.

With the divorce and separation process being such a complex and emotional time for all involved, it’s important to pick the right legal advice.