Divorce and pre-marital assets

angeltreats

I have a family member (I'll call him Harry) who is going through divorce proceedings at the moment, and the court stuff is due to start next month. It's definitely not amicable and he's worried about what's going to happen - apparently the solicitor is being a bit noncommittal - and I wondered if anyone else has been in a similar position and what was the outcome as I'd like to be able to tell him what other people have experienced.

I'm not looking to apportion any blame here or pass any judgment - obviously there are two sides to every marriage breakup and I've only heard one (and I actually liked his wife and am in no way trying to imply that she's an evil cow etc etc).

Harry was married for roughly five years, before separating. They had one child just before the marriage, and another one after. The wife (Sally, let's say) left but there was no infidelity - although I don't think that makes any difference to who's entitled to what. Sally signed a prenup before the wedding, but they know this isn't legally binding in the UK.

Harry bought the house before he even met Sally and it is still in his sole name. He has always paid the mortgage and there is a bit of equity (roughly £100K) but he had to remortgage it to pay for legal fees as they had a bit of a battle over custody. It was the marital home but she left to live in a rented property (which I believe is paid for with housing benefit), and he still lives there.

They have never had a joint account at all, and Harry has no other savings to speak of (all been spent on legal fees). He's not a particularly high earner (I'm not sure but would guess at around £35K), although he does have a final salary pension with the company he's worked for since leaving school and probably has around 20 years service so I suppose the pot could be around £233K.

Sally has never really worked - this is more down to choice than anything as they would have had free childcare available. At the risk of sounding judgmental - and honestly I'm really not - she didn't do an awful lot of housework either and usually spent the days with her friends and family, Harry did most of the cleaning and cooking when he got home from work. So I don't know if it could be said that she was helping to further his career etc etc. I have no idea if she has any savings in her own name, although I wouldn't think there would be much as she hasn't been working.

They are going for a clean break. Harry is worried about losing his home and having nowhere to live - also bear in mind that they share custody and his kids stay with him about 3 days out of 7 so he does need to have somewhere for them.

Obviously this is all very speculative and will depend on a lot of things, but does anyone have any thoughts as to how this might all turn out?

NAR

Who is at fault in the divorce will have no bearing on the split of the family finances.

Has Harry told you anything about the negotiations on the Financial Consent order? That happens between both parties and their solicitors. One side makes an offer which is either accepted or renegotiated until accepted, or goes before the judge as non agreed. The judge then decides the split.

The information you have given is not complete and is therefore very difficult to comment on.

zzzLazyDaisy

The first thing to be aware of is that with two children and a 5 year marriage the starting point will be 50/50 of all marital assets, regardless of whose name they are in. Once children are involved, their interests (and by association the interests of the parent who is the main carer) carry significant weight.

The pension splitting laws on divorce will also be a consideration.

The issue of maintenance is separate, and the formula can be found on the CSA website. The parent with care (in this case the mother) is entitled to receive this money from the non resident parent - the question of whether she does or should now work, claim benefits etc has no relevance to the issue of maintenance.

The issue you raise about the mother choosing not to avail herself of childcare so she could go out to work, not doing much cleaning, and/or the fact that it was her who left (regardless of whether there was any infidelity on either side) are totally irrelevant to the financial issues.

So yes, unless he can afford to buy out his wife, there may be a possibility that he may have to sell his house. But to be honest, only his solicitor can answer the questions you are raising as the solicitor has access to all the facts, which you probably do not, and strangers on an internet forum definitely do not.

angeltreats

It hasn't actually got that far yet. No negotiations have started at all and no offers have been made, so far they've only managed to sort out the custody stuff and it's only now that they're getting on with the divorce itself but the whole thing is very acrimonious. This is really just pure speculation as to what "might" happen eventually.

I should have said, he is already paying maintenance, that much has been sorted and isn't being disputed. He's just wondering mainly about the house which he had (albeit mortgaged) before the marriage.

zzzLazyDaisy

angeltreats wrote: »

This is really just pure speculation as to what "might" happen eventually.

In that case, I suggest you toss a coin, because you will get just as good an answer as posting on here.

The simple fact is that only a solicitor, with access to all the facts, who has already entered into some dialogue with her solicitor, will be able to give Harry any indication of how this is likely to pan out.

However *if* he thinks she is not going to get her hand on his house and/or his pension on the basis of the pre-nup then he almost certainly has a wake-up call coming.

angeltreats

Well on that basis I think his solicitor might be babying him a bit, because he seems to think she won't have any claim to the house, while I disagree. I don't know whether the entire pension would be seen as a marital asset or only the rights he accrued during the marriage but he seems quite uninterested in the pension.

I think he really needs to sit down with the solicitor and be told honestly "this is what you could lose" but that doesn't seem to be happening. Of course he might be only hearing what he wants to hear.

zzzLazyDaisy

angeltreats wrote: »

Well on that basis I think his solicitor might be babying him a bit, because he seems to think she won't have any claim to the house, while I disagree.

Maybe the solicitor has access to facts that you (and we) do not? But no doubt he will find out soon enough, once the negotiations are started.

I don't want to seem harsh, but I am struggling to understand why it is any of your business and why you think either you or strangers on an internet forum might be better placed to advise your family member than his solicitor?

angeltreats

A bit harsh indeed. It's not my business, but it is a family member who I'm close to and I've had my ear bent about the whole thing since the marriage first broke up. Now I'm hearing about how he's read this thing or that thing and he thinks this or that will happen, and ideally I just would have liked to hear from anyone who'd been in a similar position so I could show him what had actually happened to them. I think he's being a bit optimistic and would hate for him to get a big shock when he hasn't been prepared for it, which his solicitor doesn't seem to be doing. Not in any way to scare him or be cruel, just realistic and manage his expectations.

NAR

angeltreats wrote: »

I don't know whether the entire pension would be seen as a marital asset

Yes it will (in my experience).