ITV This Morning: Legal Clinic & Property

Divorce|Family Law|Stowe Family Law|May 22nd 2013

Earlier today I returned to the London studios of ITV This Morning for my regular phone-in divorce clinic. Today’s topic was one of the hardy perennials of divorce law: property.

As ever, it was a lively session, with viewers  ringing in from round the country for reassurance and advice. I felt there was real urgency to many of the enquiries. What, after all, could be more fundamental to the welfare of your family than the roof over their heads?

Setting up a home with your partner is one of the true building blocks of marriage. Your home is where you and your partner lived out your marriage, more or less, and your home was the venue for high hopes and happy times. Leaving those four walls can be a wrench – especially if you are facing the prospect of leaving your beloved home because your partner has fallen for someone else. They say moving home is one of the most traumatic things many of us ever do. They say the same about  divorce. Put the two together and you have a recipe for real heartache.

The best advice I can offer to anyone facing the emotional turmoil of divorce is: stay calm and stay focused In my recently published e-book ‘Divorce & Splitting Up: Advice from a Top Divorce Lawyer, I offer the following practical tips on handling the house while you wait for the decree nisi to come through:

·Be practical. First and foremost, force yourself to consider the situation as objectively as you can, even under these difficult circumstances.

·Stay awhile. If your husband or wife has found someone else, the chances are that he or she will want to move out to be with the new partner. But if the cause of your divorce is less clear cut, the longer you can both stay together the better you will be able to plan for, and afford, life apart. It may not be in your interests to leave, and a way may be open for you to stay. So don’t rush to put up the for sale sign. But don’t be bloody-minded either. If it is clear the house must be sold, don’t delay, although you shouldn’t move out until you have somewhere to go – preferably your next permanent home.

·If one of you leaves before the divorce is finalised, you will have to maintain two properties on an income which previously maintained one. Even if the plan is to buy two smaller houses, do make sure the family home is sold before you plunge into the property market. Otherwise you could be caught out and burdened with indefinite bridging loan repayments.

Each case needs to be considered on its own facts, but I have come across many  wives in a hurry to settle, who agreed to a sale – and then had cause to regret it later on, when it became clear they could have stayed or obtained more than 50 per cent of the proceeds.

·Work out who will pay for what. If staying under the same roof really is out of the question, make interim financial arrangements. If your partner is the breadwinner, can afford to maintain two homes for the time being and is willing to do so, then fair enough: this plan may suit both of you. But don’t rush into that decision. Relinquishing hold of what is a major asset means that if your spouse wishes to delay the sale, it will be much easier if you aren’t physically there. One of my clients somehow managed to delay the sale of his home for five years after the court ordered a sale. His wife bitterly regretted her decision to move out.

·Stay behind the wheel. If your partner moves out and promises to keep up with the mortgage and all the outgoings, don’t put yourself in the position of finding you are months in arrears when payment hasn’t been made. Make sure you know for sure, every month, that the mortgage and other bills have been paid, either by getting the money from your spouse direct, or by checking that it has all been paid. Some building societies estimate that up to 40 per cent of their arrears are due to divorce or separation, so they understand the problem and will do their best to help.

Next, contact your solicitor and ask for an interim order to be obtained to make your partner pay. If your partner’s name is on the mortgage, it will clearly be in their best interests to do so. If the house is eventually repossessed, your partner will lose money too and will find it very difficult to obtain another mortgage in the future.

If your partner still refuses to pay and you take over the payments, you can argue that you are entitled to a larger share of the property when it is eventually sold.

Approach your bank manager for an overdraft. The court cannot ignore the existence of a loan when making the final orders on your divorce. This may be more practical and cheaper than going to court for an interim order. Make sure your solicitor notifies your spouse that you are doing this, and give your spouse the opportunity beforehand of clearing the arrears by stating that you will be claiming not only the amount of the borrowing at the final hearing but also interest and the costs of so doing.

If you need to, contact the Benefits Agency for help. They may well be able to assist you.

Focus on the practicals and your emotions will settle in time. A new life in a new home is far better than lingering in the past!

 

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