Court Orders that Wife can remain in the former Family Home for Life.
Posted on July 23rd, 2015 by Andrew NIxon
As more people of retirement age divorce than any other age group, this blog discusses the issues they face and the concerns they have when the assets are not enough to rehouse them both. It also serves as a forewarning about how much reliance one should place on the ‘indication’ given at FDR.
The Family Court recently ruled that following a long marriage of over 40 years the wife could remain living in the family home that she jointly owns with her ex-husband for life despite that being the only asset and both parties nearing retirement age. At the FDR the indication was that the property should be sold without delay.
The background: The husband and wife married in the 1970’s. They bought a home together and during their marriage had several children. Those children eventually grew up and flew the nest leaving the husband and wife to remain living in that home until the husband had an affair and subsequently left the home to go and live with his new partner in her property late 2000’s. Approximately 5 years later a petition for divorce was presented and the court granted a decree absolute in 2013. This was therefore a long marriage.
The division of the finances remained to be determined. There was only really one asset from the marriage and that was the former matrimonial home. There was no mortgage outstanding on it and it had a value of just shy of £100k. Savings were negligible, pensions were modest and both had incomes that just about catered for their needs. Eventually the husband (who had taken no assets from the marriage and had no legal interest in his new partner’s home) applied for a financial order (ancillary relief order) seeking that the former family home be sold and the proceeds split equally.
Maybe this sounds familiar to you. Modest assets and a fear that splitting them will leave you with nowhere to live. This was certainly my client’s fear.
Before the final hearing the parties attended for an FDR (Financial Dispute Resolution) hearing. The purpose of this hearing is to obtain from a judge an indication of what they may award at a final hearing if they were deciding the case, so that the parties can continue to negotiate productively and hopefully avoid the need for a final hearing. At that hearing the judge’s indication was that there would be an order for sale. Following that hearing our client was left not only worrying about whether she would have anywhere to live, but also whether it would be fruitless fighting the case to a final hearing.
As a divorce barrister I are familiar with the fact that the judge at the FDR simply gives an indication and that so often this indication varies considerably to what is finally ordered. The wife was reminded that at the FDR the judges are often not in possession of all the facts and in any event they haven’t heard evidence from the witnesses or parties. In this case the wife decided to maintain her position and pursue the matter to a final hearing.
During a review of the judge’s indication it quickly became apparent that the wife’s poor health and the effect that moving house would have upon it would be a central issue in the case. She was advised to obtain medical evidence demonstrating her poor health and evidencing that any move would significantly impact detrimentally upon it. The wife listened to the advice and obtained it.
As a rule of thumb the starting position when considering a division of assets post marriage is 50/50 and thereafter one looks for good reasons to depart from this. What the husband was seeking was in line with the starting position. What the wife was seeking was a life interest in the property and a 60/40 split of the sale proceeds (in essence a total right of occupation free from the husband for life and an interest free loan from him of c£40k for life).
During the final hearing it was demonstrated that the husband’s housing needs were met, despite the fact that he did not have a legal interest in his new partner’s property and that that relationship could end at any time. In addition considerable weight was given to the wife’s poor health and the negative effects on it of moving house. Following the judgement the judge made an order for sale but postponed it allowing the wife to remain in the home for life. In the event that the property was sold the proceeds were to be split 60/40 in the wife’s favour.
The case usefully demonstrates the perils of putting too much weight on the indication at FDR especially in a situation where additional evidence should be obtained. At the final hearing we were able to demonstrate that where there were no other available assets, where the husband was not in need of capital to provide accommodation for himself (although he wanted capital to subsidise his pension) and where any share in the equity of the former family home awarded to the wife would be insufficient to enable her to purchase alternative accommodation, the court should ensure, if possible, that each party should have somewhere to live as a prime consideration.
If this has raised issues that you recognise and you would like to discuss them or if you simply want advice about the financial consequences of separating from your spouse or partner, then call me on 0113 227 0708 and we'll arrange a no obligation conference.
Andrew offers Free Telephone Clinics during weekday evenings.
The Free 10 minute telephone clinics are open to anyone seeking legal advice. Solicitors, Paralegals and Direct Access clients welcome. Clinics are between 5pm - 6pm every week day evening. To book a slot please contact his clerk Nick on 0113 227 0708 or email njd@stpaulschambers.com
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