Former marital home

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  • #45022
    marlene
    Participant

    Hi some advice please!

    We have a case where a couple have separated. The wife and daughter have vacated the former matrimonial home and are now renting and hence have made a claim for HB. The home is not for sale, and the claimant has produced a consent order, which states that by consent and with effect from decree absolute it is ordered that, the respondent (the former parter) pay the petitioner (the claimant) £50k in instalments as follows:

    £15k immediately, followed by £35k to be paid on the earliest of the following events: daughter reaching 17, respondents permanent vacation of the home, voluntary sale, respondents death, respondents permanenet cohabitation , respondents remarriage. The balance of £35k is to be registered as a legal charge against the property.

    Does this have a value? Can she force a sale to get her hands on the £35k? I am assuming so as the order states 'voluntary sale', but then again says voluntary!

    Any thoughts greatly received!

     

      

      

     

     

    #126941
    Anonymous
    Guest

    I am not a legal expert, however when couples get divorced either the wife remains in the matrimonial home, and the former husband has to pay maintenance, or the husband stays and there is an agreement drawn up so that any monies owed from joint assets – usually the home is paid to the former partner once they are divorced.

    As she has left and the husband wants to remain in the property he has to “buy her out” as it were, and so I believe that the agreement as described by you is probably legally binding, and she has probably agreed to it.
    The lump sum would enable her (potentially) to purchase a new property with a mortgage, and the rest is payable as instructed by – presumably the divorce court.

    It is not unusual for the money due to be paid in “instalments” and I think it is probably because the ex husband cannot pay her such a large lump sum in one go, but I do not think she can force the sale as it looks as though this is a binding agreement, so therefore she cannot access the money.

    #126954
    d-stainsby
    Participant

    The potential right to take proceedings is not a capital asset [R(IS)1/03]

    I think you should accept the consent order as the starting point for your assessment and take the £15k as capital held absolutley and the £35k as a chose in action that has a sale value.

    #126956
    chris harvey
    Participant

    I think the issue of her “forcing a sale” is academic because she clearly has agreed to this arrangement so she has chosen not to go down the forced sale route. When the consent order is actioned and the £15,000 paid, the property is transferred at the same time into his name, up until that time she is a joint owner and her benefit will need to be assessed as a joint owner for this period. This is not straight forward, there will be a period where it is disregarded and then a valuation reflecting joint ownership should be obtained with deductions for any mortgage and selling expenses. Once the property is transferred she will no longer be a joint owner and she will need reassessing with the £15,000 capital. How much capital she already has will determine if she is over the capital limit.
    I don’t think the £35000 capital to be repaid in instalments will affect her claim, each instalment should be treated as income but as she is not going to receive it anytime soon there is no effect at the present time.
    I don’t think deprivation on the basis that she has given away some of her share would stick as she has clearly had legal advice to reach the settlement that she has, plus the fact these type of settlements are not uncommon.

    #126967
    marlene
    Participant

    The order says that the £35k only needs to be paid at the earliest of the following events:
    1.Daughter reaches 17
    2.The respondent’s permanent vacation of the home, for whatever reason
    3.Voluntary sale or other dealing
    4.The respondents death
    5.The respondents permanent cohabitation for a period in excess of 6 months
    6.The respondents remarriage

    Its the voluntary sale or other dealing that confuses me!

    #126971
    d-stainsby
    Participant

    That simple, should the repsondent voluntarily sell up (eg if he subsequently moves in with a new partner and sells his own house) then the wife gets her £35k straight away.

    If that does not happen then its nothing to consider

    #127003
    Andy Thurman
    Keymaster

    I probably wouldn’t spend too long trying to prove/pursue it, but I do think there is an argument of deprivation here. From a position of very little knowledge of these things, I understand that a consent order is one mutually agreed between the two parties (thus avoiding court) and it is, therefore, highly convenient that she has agreed to only £15k up front! (The legal advice, as mentioned by Chris, may well have been: Ex-wife “I want more than that from him”, Solicitor: “well, one good thing if you accept £15k as an initial payment, it will leave you able to continue claiming benefit.”)

    #127008
    Anonymous
    Guest

    Andy said – (The legal advice, as mentioned by Chris, may well have been: Ex-wife “I want more than that from him”, Solicitor: “well, one good thing if you accept £15k as an initial payment, it will leave you able to continue claiming benefit.”)

    Andy – that was almost cynical coming from you! I am shocked :O

    It may also be the case that the £15,000.00 is sufficient for her to put down a deposit and purchase another property for her and the daughter, no need to claim HB.

    The daughter could be almost 17 so she may get her money real quick.

    Ex husband may have a new partner still living in her own home for proprietaries sake but eager to move in at the first opportunity.

    The possibilities are endless. :bigsmile:

    #127028
    John Boxall
    Participant

    I think in cases like this where legal advice is involved it would be almost impossible to prove deprivation

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #127040
    Andy Thurman
    Keymaster

    [quote=Caroline]Andy said – (The legal advice, as mentioned by Chris, may well have been: Ex-wife “I want more than that from him”, Solicitor: “well, one good thing if you accept £15k as an initial payment, it will leave you able to continue claiming benefit.”)

    Andy – that was almost cynical coming from you! I am shocked :O [/quote]

    I have my cynical moments! I did say I wouldn’t pursue it and agree with you (and John) in that there are many other possibilities.

    #127043
    John Boxall
    Participant

    I’ve done a consent order at the door of the court so it’s not necessarily thrashed out beforehand for a judge to rubber stamp

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

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