Housing After Divorce

Wanderer1983

I was hoping people might be willing to share their experiences of how housing issues get resolved in divorce. I have a basic idea of how the law works (Meshers, orders for sale etc) but I had some more specific questions I'm hoping people can give me some steer on. 

Just a very simple background. Divorcing, I'm 40, she's 39, three children. I have mortgage capacity of about £350k, she has one of only £100k and we're currently living in a £390k home with £110k of equity. Fixed term mortgage due to expire in three years. We're disagreeing on the house because although I'd be willing to give her most if not all of the equity this will mean I will need all of my mortgage capacity to get my own place. She on the other hand expects to be allowed to stay in the current home until the youngest leaves university in 17 years time whilst I can live in a studio flat. This would jeopardise my proposal for a 4/3 night split of childcare each week and seems very unfair. 

My questions are: 

1) Are Mesher Orders that common these days? I thought courts had moved on in pursuit of clean breaks and would just award her all the equity, compensate me with more of my pension and tell her to downsize. 

2) Would the court really skew the balance towards one parent to such an extreme where it wasn't possible for both to meet their needs? By which I mean if we both need 3 bedroom houses but this is not affordable, they would ensure one parent could still meet these needs and then tell the other parent to lump it? My assumption had been that they would just tell us to both get 2 bedroom places in order to allow us both to meet our bare minimum needs. 

3) If she gets her way, presumably she would be expected to pay the mortgage and my understanding is that she would get some wishy washy instruction to release me from the mortgage as soon as possible which a lot of Mesher Order beneficiaries historically ignored/did the bare minimum to comply with. Presumably I would be in my right though to refuse to sign up to any further fixed term deals because if she is meant to be making best endeavours to release me from the mortgage this would prohibit her signing up to deals with early repayment charges anyway? 

4) Typically, would it also be fair to say I would not be expected to cover a share of property maintenance if she was the one living there? 

Lavendyr

Have you been to mediation at all? Before going to court that might be a helpful option. It doesn't seem reasonable at all to me (as a divorcee) to expect you to have a studio flat - as you say, that would make it difficult for you to have the contact time with the children that you would like, and it makes it sound as though she isn't keen on you having that sort of contact too. 

Edit to add: There is always child maintenance so you will need to bear this in mind if you do not have the children 50/50. 

Thrugelmir

What has your family law solicitor advised? 

tightauldgit

Whatever split is decided will be based on the totality of the picture including relative incomes and other assets such as savings pensions etc not just the house.and you haven't given that info. 

With regards the house is she saying she plans to stay in it indefinitely? How then does she plan to release you from the mortgage? Does she have financial capacity to get a mortgage in her sole name?

Any new fixed term deal is going to be a remortgage and of course you wouldn't be part of that so she's presumably stuck on the current mortgage and whatever rate it switches to? Is that going to be affordable for her? 

pinkshoes

Well you could always keep the family home, have a bedsit and take it in turns to live in the family home with the kids and the other in the bedsit? You'd need some clear rules to adhere to, and perhaps both you and her have your own room in the family home.

(similar to the agreement in the series "Our House"!)

With 3 kids, both of you getting a 2 bedroom place is not in their best interests. 

Wanderer1983

pinkshoes said:

Well you could always keep the family home, have a bedsit and take it in turns to live in the family home with the kids and the other in the bedsit? You'd need some clear rules to adhere to, and perhaps both you and her have your own room in the family home.

(similar to the agreement in the series "Our House"!)

With 3 kids, both of you getting a 2 bedroom place is not in their best interests. 

Well, it seems one of two things could happen. In my opinion, the house should be sold, she could have most of the equity and then she would have the capacity to buy something with two bedrooms. I would have the mortgage capacity for something with three bedrooms after a couple of years of saving.

Her opinion on the other hand is that although she has no intention of doing her fair share to earn money for the family, SHE should get the four bedroom house we're in now and I can live in a cardboard box if necessary. "For the kids" of course...

ironlady2022

This is really difficult to answer without the bigger picture. 

Essentially you should both have the same housing needs and if going through court, this is what the judge would want. However, if there's not enough in the pot, then the needs of the children trumps everything in divorce, up until the youngest turns 18. So then this goes back to how often you are having the children, which sounds like it is just less than 50/50.

You need to go through mediation as a state for 10.

TBagpuss

see comments in bold below:

Wanderer1983 said:

I was hoping people might be willing to share their experiences of how housing issues get resolved in divorce. I have a basic idea of how the law works (Meshers, orders for sale etc) but I had some more specific questions I'm hoping people can give me some steer on. 

Just a very simple background. Divorcing, I'm 40, she's 39, three children. I have mortgage capacity of about £350k, she has one of only £100k and we're currently living in a £390k home with £110k of equity. Fixed term mortgage due to expire in three years. We're disagreeing on the house because although I'd be willing to give her most if not all of the equity this will mean I will need all of my mortgage capacity to get my own place. She on the other hand expects to be allowed to stay in the current home until the youngest leaves university in 17 years time whilst I can live in a studio flat. This would jeopardise my proposal for a 4/3 night split of childcare each week and seems very unfair. 

My questions are: 

1) Are Mesher Orders that common these days? I thought courts had moved on in pursuit of clean breaks and would just award her all the equity, compensate me with more of my pension and tell her to downsize. 

It depends - mostly on what each of you needs and what you can afford. IF you currently have £110,000 equity and your wife has mortgage capacity of £100K then one question is whether she can realistically rehouse somewhere that it suitable for her, and for the children, for £210,000 (or less).

A clean break is always the preferred option, but it isn't always achievable, depending on the specific circumstances 

It's also relevant to look at what housing options would be available to each of you and whether this is likely to change in the foreseeable future. For instance:

- would your wife be able  to try to get a shred ownership property, which might make it more affordable for her to get a 3 or 4 bed property with the level of mortgage she can afford.? 
- Could she afford the current mortgage payments and other outgoings on the current house, if she were to stay there?
How old are the children? What child care options do you have?
does your wife work full time, and if not, would it be possible for her to increase to full time? If not, how long is it before it might be reasonable for her to do so? 

2) Would the court really skew the balance towards one parent to such an extreme where it wasn't possible for both to meet their needs? By which I mean if we both need 3 bedroom houses but this is not affordable, they would ensure one parent could still meet these needs and then tell the other parent to lump it? My assumption had been that they would just tell us to both get 2 bedroom places in order to allow us both to meet our bare minimum needs. 

The children's needs are also important- If you have three children then even if they are all the same gender, would a 2 bedroomed property really be appropriate? 
The court will usually prioritise ensuring that there is a secure home for the children, but this doesn't have to be the same house as they currently live in, and is not necessarily always until the youngest leaves school.

it looks as though your youngest child is 4 - it might be reasonable for there to be a short term order, perhaps allowing your wife to reman in the property for a further 3 years, to tie in with the current fix. That would give her that time to increase in her working hours / income / mortgage capacity (particularly if you split the child care so she is able to increase her hours, if she currently works part time around their needs)

3) If she gets her way, presumably she would be expected to pay the mortgage and my understanding is that she would get some wishy washy instruction to release me from the mortgage as soon as possible which a lot of Mesher Order beneficiaries historically ignored/did the bare minimum to comply with. Presumably I would be in my right though to refuse to sign up to any further fixed term deals because if she is meant to be making best endeavours to release me from the mortgage this would prohibit her signing up to deals with early repayment charges anyway? 

The wording of the order can define what 'best endeavours'' means. It usually includes remortgaging with a different lender or at a higher interest rate.  f the mortgage was still in joint names then it might well be in your interest to sign up to further fix if this would make it more likely that she could save in the short to medium term to get you released


4) Typically, would it also be fair to say I would not be expected to cover a share of property maintenance if she was the one living there? 
Usually an order would cover this - typically, the person living in the house is expected to cover normal routine, day-to-day upkeep, and to keep the property in a similar condition to at the date of the order. It's not uncommon for an order to say that any major works are paid for in the same % as you will ultimately split the equity, so if the roof needed to be replaced, say, you would split the cost on the basis that it is protect your continued investment in the property 

Wanderer1983

@TBagpuss

Great advice as always! If you wouldn't mind I've got some follow up questions you may be able to help with: 

1) Her mortgage capacity from our current lender would include child maintenance and benefits so she could lend about £160k. She also drives a car worth £30k that she could easily replace with one for £10k which would give her a total budget of about £290k. Assuming moving, legal and estate agent costs she'd have a budget of £270k. I can see three bedroom houses and maisonettes within catchment for £240k so presumably although these are smaller than our current property this would be evidence that her needs could be met in a cheaper property? I guess I could also argue she doesn't need all of the equity? 

2) I understand the children's needs are important but this is the greyest of grey areas for me. The children are going to spend approximately 41% of their time with me (3 nights a week plus shared holidays). Would a court really insist on my wife getting a Mesher Order on the house for the 59% of the time that they were with her even if it left me in a bedsit? Surely it would be worse for the children to spend 41% of their time in a bedsit than all of their time in two small terraced houses? The only person I can see benefiting from such an order is my STBXW? 

3) You mention a short term deal might be appropriate, up to the end of the fixed period. I could certainly live with that. If it's a simple case that one of us has to rent on a 59/41 split of childcare I'm at a loss as to why there's just an assumption that I have to be the one renting, especially when I'm working 40 hours plus a week whilst she works far less hours than she could be. It feels like she has all the control over increasing the shared income pot but also all of the power to do nothing about it? Would it be seen as fair if I say "fine, I'll rent for the next 6 years, then Mesher ends and you take a turn renting until the kids are grown up." 

Just to clarify, she studies full time and works part time so I already do 50% - and possibly more - of the childcare already. The split simply reflects the nights rather than the days if that makes sense. 

4) Okay, so I could put best endeavours with maybe even a hard deadline to come off the mortgage? To be honest, she won't be able to afford a variable mortgage anyway and I understand what you are saying but she is terrible with money and she won't save anything whilst on a fixed deal. So I'd rather crank up the pressure on her if she tries to use my mortgage capacity for too long rather than put false hope on her saving. 

5) Noted on the maintenance. So if plumbing needs doing, that's on her. Roof, shared proportionally to our investment. 

cheeky-peach

Could your wife not live in a bedsit/flat and you stay in the family home with the children?

tightauldgit

Wanderer1983 said:

4) Okay, so I could put best endeavours with maybe even a hard deadline to come off the mortgage? To be honest, she won't be able to afford a variable mortgage anyway and I understand what you are saying but she is terrible with money and she won't save anything whilst on a fixed deal. So I'd rather crank up the pressure on her if she tries to use my mortgage capacity for too long rather than put false hope on her saving. 
 

Difficult to be too specific in 'best endeavours' as there are factors outside your control especially as time moves on but I think it would be important to set out a framework of exactly what the plan is that she is going to make her 'best endeavours' to implement. 

She can't really say she is going to stay in the house, make no effort to increase her earnings and yet also make best endeavours to release you from the mortgage if she has no way of doing that.

Possibly you could agree that she can stay in the property for X period and then if she is unable to release you from the mortgage the property will be put on the market? on the other hand, it may well be that the best thing would be to sell the property immediately? Is there any real reason why you can't just sell now if her housing needs can be met?