Using mediation for financial agreement

tightauldgit

elsien said:

I think mediation is a legal requirement unless there are good reasons not to such as domestic abuse.
It's not legally binding but it can be a good way for all to consider what is fair. And if one party is being particularly unreasonable, it can also be evidence for the court if it has to go that far. 
If you had a civil ceremony as well as a religious ceremony here, then you are legally entitled to be looking at 50% as a starting point. 

It's a legal requirement in theory but in practice if either party doesn't want to then you just get the form from the mediator saying it's not appropriate and you put that in your court application. In my experience the court couldn't care less. It seems to just be a box ticking exercise to try to get people to go down the mediation route before they bother the court.

TBagpuss

NornIronRose said:

Thank you. 
I don't believe that I am entitled to a share of his other assets. We are Muslim and I am only entitled to a share of the property which is jointly owned, so I am not looking for any of his savings, pensions or investments. 
Only a 50:50 share of the property. The difference in what he is offering will be around £20k I think. So not a huge amount in the grand scheme of things, but a lot of money for me. 
The biggest difference is that I don't want to have to give up my home, move into rented, while waiting for the remainder of the value. That would just be money down the drain. 

If we sell, then I can use the equity to buy something else. 

I like what you have said about using a mediator so we can see what we do agree on, and don't agree on. 

If you are in the UK then UK law applies, and all assets, not merely those in joint names, would be taken into account. Even if you had a pre-nuptial agreement then this would only be part of what a court would take into account s the requirement is to achieve an outcome which is fair - and after a long marriage like yours, a split where he gets to keep all of his pension s is unlikely to be fair, particularly if there have been periods in the marriage where you have had more traditional roles, for instance you taking time out of your career to care for children etc. Obviously if you have worked throughout and have similar levels of earnings and pension as him then of course it is less of a concern, although it would still be appropriate to both provide details of those assets and their values. 

I would recommend that you talk to a solicitor before you start mediation, so you have a clear idea of what may be relevant.

Mediation can be very helpful but it does require a fair degree of trust and you need to think about whether you feel that you can negotiate on an equal footing. It's most successful where both parties are genuinely open to negotiation and willing to compromise. 

Normally you would have a solicitor as well, to provide you with advice about any proposals made in mediation.

The fact that tat your husband is already resisting getting the house properly valued and is pushing you to accept less that 50% even before taking into account other assets is a red flag and I would question whether mediation is going to be your best option.

Jut so you know, it's not a choice between mediation and court proceedings - if you see a solicitor then they will normally try ot help you negotiate a settlement, and court proceedings are always a last resort. I'd suggest going to https://resolution.org.uk/find-a-law-professional/ and looking for a solicitor in your area for an initial discussion. You could look for a solicitor who offered Collaborative Family Law - this is another type of ADR, it's designed to address some of the problems there can be with mediation (e.g. one person being much more forceful/ less open to compromise, the lack of legal advice) and keep the benefits (you get to negotiate direct, it's more open and based on a degree of cooperation) Solicitors who offer collaborative law can also advice on non-collaborative cases but are people who are motivated to help you reach an agreement rather than taking and aggressive, adversarial route. 

london21

NornIronRose said:

Not sure how to edit the above post, but I forgot to mention that he wants to give me the cash to buy my half of the property. He doesn't want me to get it valued, instead he has estimated its value and is asking me to help him out and settle for half of what he estimates as its worth. 

Fairer to get it valued so can both get a fair share.

MattMattMattUK

NornIronRose said:

Thank you. 
I don't believe that I am entitled to a share of his other assets. We are Muslim and I am only entitled to a share of the property which is jointly owned, so I am not looking for any of his savings, pensions or investments. 
Only a 50:50 share of the property. The difference in what he is offering will be around £20k I think. So not a huge amount in the grand scheme of things, but a lot of money for me. 
The biggest difference is that I don't want to have to give up my home, move into rented, while waiting for the remainder of the value. That would just be money down the drain. 

If we sell, then I can use the equity to buy something else. 

I like what you have said about using a mediator so we can see what we do agree on, and don't agree on. 

I have a vague recollection of reading a previous post where you said that you do not have a legal marriage, is that recollection correct? 

TBagpuss

elsien said:

I think mediation is a legal requirement unless there are good reasons not to such as domestic abuse.
It's not legally binding but it can be a good way for all to consider what is fair. And if one party is being particularly unreasonable, it can also be evidence for the court if it has to go that far. 
If you had a civil ceremony as well as a religious ceremony here, then you are legally entitled to be looking at 50% as a starting point. 

Yes, sort of. It's a requirement to have tried it, which means having made a referral. The mediator then assesses whether the case is suitable for mediation. If they think it isn't, then they sign a certificate to say so which lets you start the court process. IF it's suitable, then you start the process but either party can opt out at any time . If @NornIronRose said in her initial intake meeting (which is just you and the mediator) that her ex is refusing to agree to get a valuation of the house and trying to bully her to accept less than half the house and nothing else, and that she feels under a lot of pressure and isn't comfortable mediating then the meditator may well agree that the cae is not suitable for mediation. 

My experience is that mediation can be very useful, but unfortunately at present the government has decided it's the miracle cure and everyone should do it, while in realities it's excellent for people in certain situations, and not at all useful for a lot of people in different situations. It's also, in my experience, a lot more effective if there has been some voluntary disclosure and if both parties have had some legal advice first, so they start out with a reasonable idea of what there is to divide up and some understanding of the range of options available to them and what might be seen as reasonable by a court if they aren't able to come to their own agreement,  as I find that usually makes for much more productive discussions.
It's also very dependent on the mediator and how good they are, and how alert they are to any possible issues such as the 'weaker' party's ability to stand up for themselves.  Collaborative Law and Roundtable meetings with both parties solicitors can both also be effective methods to try to get a negotiated agreement 

Malthusian

I am not a Muslim but there is a relevant Christian expression here: "Render unto Caesar that which is Caesar's", meaning "Religion must always come to an accommodation with the law". 
When the Koran was written, stockmarkets and pension wrappers didn't exist. 
If the OP insists on giving up an equitable and legal entitlement for religious reasons it's a free country. But the notion that there is any such thing as "his assets" and "her assets" after a 24 year marriage is hogwash. It seems likely that the vast majority of the pension at least was earned during the marriage, which means it is only "his" because that's how our secular tax system works.
I bet if all the marriage assets had been put in the OP's name to take advantage of a lower tax bracket, the ex would be much less keen to follow the Islamic rules on dividing them up.
Also, when the Islamic rules on divorce were written, the husband usually paid a dower (bride price) to his wife on marriage, which she would retain on divorce along with "her" property. 
Unless the OP has been paid a substantial dower and is taking it out of the marriage along with half the jointly owned property and all property in her name (which hasn't been mentioned), the husband is having his Islamic cake and eating it. He would be following secular rules on entry by not forking out a dower but following Islamic rules on exit, to his exclusive advantage.
I doubt you will find any religious scholar that says it is fine to follow secular law when it suits you and ignore it when it doesn't.
If he can actually afford to pay off the OP over a period of time, he can get a mortgage on the house and pay her off now.

NornIronRose

Thank you all for some very helpful advice. I didn't reply before because I have been at work and just catching up now.  
To address some of the points raised: yes,  same dh who hasn't paid any child support. That has not changed as he still does not have an address that I know of. 

Shariah law does set out what I am/am not entitled to in divorce. It is not as clear cut as it would be for inheritance. He is adamant that I am not entitled to 50% of the home as he put more equity in than me.  This is true,  but I also worked while he studied,  looked after our home and children, and paid bills throughout the marriage. I also did put money into buying our first home. 

We do have a civil marriage as well as an Islamic one. Divorce application is just going through now. 

I also need to add that I have just been granted a non molestation order. He has been determined that we leave the property and sign it over to him. He had reluctantly agreed to hold off until school finished in the summer. But now the non mol means he can't move here while we are living here, at least for the next year. 

Even though he will continue to deny it, there has been domestic abuse. Does this mean that we can't go for mediation? My brain is so tired but I think I read that and one of you mentioned it. 

NornIronRose

Just wanted to say a big thank you to TBagpuss, Tacpot, Elsien and Pollycat for your helpful, thoughtful and considerate posts over the years. Recently Tightauldgit too.
I have been on MSE for very many years and have benefitted so much. I was previously posting for years under another username but set up a new profile as ex knew my old username.
Thank you for being non-judgemental, fair and caring enough to give of your time to help others. 
It does mean a lot. 

NornIronRose

Pollycat said:

Have you factored in the child maintenance he wasn't paying because you didn't know where he was living?
No address for ex, therefore no hope of maintenance. — MoneySavingExpert Forum

Has he now paid the arrears since you found out where he is?
Will he continue to pay child maintenance after this split?

Why does he want to keep the house if he left it in November 2021?

I don't pretend to understand what your culture says is fair in divorce but with you earning a lot less than him with a child (based on what you said just over 3 months ago), I don't consider what he is offering you at all fair - to you.

He is offering his idea of child support of £200/month. Says he will pay it independently but I want it done through CMS. 

This is the home he left in Nov 21. Well, was removed from. He has been waiting until bail conditions were lifted so that he could move back in. 'Over my dead body' is the phrase that comes to mind. 

NornIronRose

Btw, my religion is Islam so I am bound by shariah law. It is my choice that I will not be pursuing a share of his pension or savings. But 

My 'culture' is British, as my name suggests. Easy mistake to make. 

As some of you have suggested too, I am intending to put a bit of effort in to get the house looking as good as possible, then getting three valuations done so I know my expectations of the equity I should get from the home when it is sold.