Divorce and Selling the Family Home
As Manchester divorce and family finance solicitors advising separated couples, we think getting divorced and trying to sell your family home during a global pandemic is a lot to expect of anyone. It isn’t therefore surprising that many of the calls that we’re currently receiving are from husbands or wives concerned about if or how they can get divorced and sell the family home. In this blog we look at the issues and your best options when it comes to divorce and selling the family home. Online Family Law Divorce and Financial Settlement Solicitors
Manchester and Cheshire based Evolve Family Law solicitors specialise in divorce and financial settlements. If you need advice about a financial settlement and the family home or any other aspect of family law call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form to set up a video conference or telephone appointment.Should I sell the family home?
Sadly, some divorcing couples don’t have a choice: the family home has to be sold. For others you can make the financial or personal choice to either sell up, transfer the property to your husband or wife or keep the property yourself.
Often people have a strong knee jerk reaction that they must keep the family home at all costs whilst others are equally adamant that they don’t want to stay in the family home because of the memories associated with it. Undoubtedly selling a family home and moving involves hassle but it is best to consider all your options and the practicalities of a move, such as:
How much is the family home worth and how much would I need to spend to buy a suitable new property?
If I stay at the family home would the mortgage company agree to transfer the mortgage into my name?
If I sell and buy another property what is the maximum mortgage that I could get?
Can I afford the monthly mortgage payments on the family home after taking into account any spousal maintenance or child support paid or received?
Is it better to make a fresh start and take advantage of the stamp duty holiday?
Will my husband or wife agree to the sale of the family home?
The effect of Covid-19 on your decision to sell the family home
Experienced family law solicitors encourage separating couples to look at whether they should sell the family home or not from a short and long term perspective so that you make the right decision for you and your family. However, it is inevitable that Covid-19 may have some influence on your decision making process because:
You are worried about house prices and achieving your sale price
You are concerned about getting the mortgage on the family home transferred to you or taking out a mortgage on a new property if you don’t feel that your job is secure or you are worried that your husband or wife is at risk of being made redundant and redundancy will affect their ability to pay you child support and spousal maintenance
You want to take advantage of the stamp duty holiday as you think that it will be easier to sell the family home during the period of the stamp duty holiday and you will save money on your purchase.
With or without the pressures of Covid-19 the decision to sell the family home, or resolving which one of you should stay at the family home, is always a stressful decision. That is why it is best to take time over your decision and not be too influenced by the views of teenage children who may be leaving home to go to university soon leaving you with a house that is too large for you and without sufficient money to pay for life’s luxuries such as holidays. Alternatively, you could end up with the family home but the trade-off is that you don’t get a share of your husband or wife's pension so you eventually have to sell the family home to fund your retirement. However, the released equity on the sale of the family home won't necessarily give you the same income return that a pension sharing order would have done.
Manchester divorce lawyers recognise that with the news all about Covid-19 and reports of localised Manchester and North West lockdowns it is tempting to decide what to do about your family home and your financial affairs based on your Covid-19 concerns. Family lawyers can help you look at all your options and factor in Covid-19 as just one consideration in your deliberations about what to do about your divorce and the family home.
The best way to divorce and sell the family home
If you are getting divorced and thinking about selling the family home here are our tips on selling the family home whilst separating from a partner or getting divorced:
Is it realistic for you both to live at the family home until it is sold bearing in mind that once the property is sold it will take time for the conveyancing process to reach completion? It is advisable to always take legal advice before leaving the family home as doing so may make your husband or wife less keen to achieve a sale. However, if the atmosphere at home is affecting you, then one option would be for one of you to rent a property or stay with family until the family home is sold
Consult with your husband or wife over the sale price and choice of estate agent and make sure that the estate agent keeps you both informed about viewings and the feedback from prospective buyers. That way if the estate agent recommends a reduction in the sale price your spouse is more likely to be willing to consider this
Get your paperwork in order as requests for documents from your buyer’s solicitor can delay the sale of the family home. If you have had work carried out at the property you need to locate your planning and building regulation documents, electrical, gas and FENSA certificates or organise duplicate paperwork
Agree how you will divide the household contents as the last thing that you are likely to want to do is try and sort out household contents at the date of the sale. It is best to list the household contents and both sign the agreed schedule and the division of contents between the two of you and highlight what items, if any, will be sold with the house
Think about whether you want to sell the family home if you haven’t reached a financial settlement with your husband or wife. It is common for a sale of the family home to be achieved before you reach a full financial settlement including how pensions, business assets and investments are split as well as whether spousal maintenance should be paid and for how long. If you are happy with the sale price of the family home and fear that you will risk losing your buyer if you delay beyond the end of the stamp duty holiday you could agree with your husband or wife that the net proceeds of sale of the family home (after discharging the mortgage, conveyancing solicitor and estate agent fees) are kept in a joint account or by a solicitor until agreement is reached or a financial court order is made. In some situations you can agree to the release of some extra money to allow you to buy your planned new property or to discharge family debts
If your spouse won't agree to a sale of the family home get a court order. If you are certain that the family home has to be sold as it isn’t financially possible for either of you to take it on because the mortgage company won't transfer the existing mortgage into one of your names or you won't be able to afford the mortgage on one salary then speak to a divorce and financial settlement solicitor about starting financial proceedings for an order for sale of the family home. If your husband or wife won't cooperate with the sale of the property then a family judge has the power to make orders about the sale price, the choice of estate agent and can even sign the paperwork to sell the property if your ex-partner refuses to sign the contract to sell the house or the deed of transfer.
How can Evolve Family Law solicitors help?
Following the tips on how to sell your family home during a separation or divorce may make the sale process a bit easier but Manchester divorce and financial settlement solicitors recognise that taking the decision to separate and sell up is hard, especially in such troubled and turbulent times. For advice on any aspect of family law or information on your financial settlement options call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form to set up a video conference or telephone appointment.Latest From Our Divorce Blog:
Robin Charrot
Aug 17, 2020
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8 minute read
Should I Divorce in England or Scotland?
You may think that when it comes to getting divorced and sorting out a financial settlement you don’t get a choice about where to start court proceedings. Our Manchester divorce solicitors will tell you that isn’t necessarily right and that when it comes to choosing your divorce forum it is best to get expert legal advice to make sure that you make the decision that is right for you. In this blog we look at the recently reported case of Mr and Mrs Villiers that highlights how a short geographical distance can make an enormous difference to the size of your financial settlement.
The Case of Mr and Mrs Villiers
One of the things that the Villiers case reminds divorce solicitors about is that divorce forum shopping doesn’t have to involve international families. That is because the disputed jurisdiction was between England and Scotland.
Charles Villiers asked the English Supreme Court to rule that his wife’s spousal maintenance claim should be decided in Scotland because he had started his divorce proceedings there.
In 2014 Mr Villiers filed for divorce from his wife, Emma in Scotland. During the eighteen year marriage the couple lived near Dumbarton in Scotland. When the marriage broke down Emma Villiers moved to London and started a new life there. In 2015 Emma Villiers applied to an English court under section 27 of the Matrimonial Causes Act 1973 for spousal maintenance. The English court ruled that she was habitually resident in England at the time of her application and so was entitled to ask the English court to rule on the amount of spousal maintenance. Mr Villiers disagreed and he therefore appealed the jurisdiction decision. His appeal eventually arrived at the Supreme Court.
The Supreme Court ruled, by a majority decision of three to two, that Emma Villiers could pursue her spousal maintenance claim in England.
You may question why time and legal fees were spent on arguing on court jurisdiction when Scotland and England are both part of the UK and not a million miles apart.
The cost of the court proceedings makes sense in the financial context that family courts in Scotland only tend to order payment of spousal maintenance for three years. Manchester divorce solicitors say that the Scottish position is sharply contrasted to the position in England where, in an appropriate case, a family judge can order spousal maintenance for life. Spousal maintenance for life means that the spousal maintenance payments won't stop until:
The payer dies – however the spouse receiving the spousal maintenance payments can make a claim against the estate if financial provision isn’t made under the terms of the Will or through an insurance policy
The payee dies
The payee remarries
The court makes an order to stop payment of spousal maintenance – for example, if the spouse receiving the spousal maintenance is in a long term cohabiting relationship or wins the lottery.
Court jurisdiction makes a big difference when the monthly spousal maintenance payments amounts to £5,500 per month on an interim basis. Furthermore, Mrs Villiers is asking the court to award her spousal maintenance of £10,000 per month based on the lifestyle enjoyed by the family during the marriage and her husband's wealth, although the extent of his wealth and the relevance of family trusts is disputed by him.
Doing the calculations, maintenance at £10,000 per month for three years amounts to £360,000 using Scottish law spousal maintenance principles but if sixty one year old Emma Villiers succeeds in her argument for life time spousal maintenance using English spousal maintenance principles then the figure could be far higher.
Mr Villiers said that his wife's actions in starting court proceedings in England amounted to ‘'divorce tourism'’ but the Supreme Court has ruled against him this week and therefore the spousal maintenance court proceedings will take place in England.
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The Supreme Court decided that the English court has jurisdiction to hear the wife's spousal maintenance application because the divorce proceedings in Scotland are not what it called a ‘‘related action’’ under article 13 of the Maintenance Regulations. Not all of the Supreme Court judges agreed with the decision but the lead judge said that as Emma Villiers is habitually resident in England the court in England can decide the issue of spousal maintenance.
The decision is being seen by many as a charter for divorce shopping to ensure that a husband or wife gets the optimum financial settlement through their choice of court jurisdiction to hear the divorce or associated financial proceedings.
England is known for its generous financial provision for the spouse who is in a weaker financial position and the decision in the case of Mr and Mrs Villiers will reinforce that view amongst international divorce solicitors.
If there is potentially more than one court jurisdiction for your divorce and financial court proceedings then it is best to take early legal advice from an expert Manchester divorce and financial settlement solicitor to make sure that you achieve a financial settlement that best meets your needs.
Our Manchester Divorce Solicitors
For specialist divorce and financial settlement legal advice call Whitefield, North Manchester and Cheshire based Evolve Family Law or complete our online enquiry form. We offer family law consultations by face to face appointment, video conferencing, Skype or by telephone appointment.
Robin Charrot
Jul 13, 2020
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5 minute read
Does the Length of a Marriage Affect the Divorce Settlement?
It is tempting to answer the question ‘’does length of marriage affect divorce settlement?’’ by saying that ‘’it all depends’’. However, many would say that reply is a typical politicians or lawyer’s answer and, if you are getting divorced, you want a clear answer, not something woolly.
The reality though is that the length of a marriage is a relevant factor when the court decides how much a husband and wife should get in a divorce financial settlement. Just how relevant the length of the marriage is depends on the couple’s financial and personal circumstances.
The short marriage and the divorce financial settlement
Many people assume that if a couple have only been married for a couple of years then the divorcing spouse will not get spousal maintenance or even a ‘’pay out‘’ or divorce financial settlement but it all depends.
If three couples have each been married for two years the financial settlement will be different for each couple, as highlighted by these three case examples:
Couple 1 Janet and John
Janet and John are both high flyers and each owned property before their marriage. They have no children. The short length of their marriage will be highly influential in reaching a financial settlement and clean break financial court order.
Couple 2 Mariah and Nick
The couple only got together just before their marriage two years ago and shortly afterwards the twins arrived. Mariah left work to look after them as Nick agreed juggling work and childcare was not in the interests of the twins. Although the couple have only been married for two years, the length of their marriage is not highly relevant, as the court will focus on the children’s needs when determining a fair financial settlement.
Couple 3 Bill and Ben
Bill and Ben married two years ago but within a matter of months, Bill realised that he had made a mistake. He has moved out and started divorce proceedings. He has assumed that he will get a clean break financial court order as the couple only lived together for twelve months out of their two-year marriage.
However, before the marriage, Bill and Ben had lived together in a continuous relationship for about fifteen years. The court takes into account pre-marriage cohabitation when looking at the length of the marriage, if it was ‘’seamless living together’’.
Although the marriage may have officially only been of two years duration, the family court could assess it as a long relationship of seventeen years when looking at what sort of divorce financial settlement would be fair to both Bill and Ben.
Does the length of marriage affect divorce settlement?
The case studies show that when a Whitefield divorce solicitor answers the question ‘’ does the length of a marriage affect divorce settlement ‘’ with a ‘’maybe’’ that whilst it may be a woolly answer it is the correct one until more information is available on a couple’s financial and personal circumstances.
For help with your divorce financial settlement please contact our specialist divorce lawyers.
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Robin Charrot
Nov 18, 2019
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3 minute read
Can Bad Behaviour Affect a Financial Settlement on Divorce?
When I first see a client regarding their divorce, one of the questions they will most often ask me as a Manchester divorce solicitor is ‘can my spouse’s bad behaviour impact our financial settlement on divorce?’ Often, the desire to apportion blame for the breakdown of the marriage and divorce can result in a husband or wife wanting the financial settlement to reflect this, for example when a spouse has had an affair, and the affair has involved some level of dishonesty.
If you are separating or divorcing and have questions about how your husband or wife's behaviour will affect your financial settlement then the Manchester divorce solicitors at Evolve Family Law in Whitefield can help you. Call us or complete our online enquiry form.
Our solicitors are approachable and friendly, providing pragmatic expert divorce and financial settlement solutions.
Divorce proceedings and unreasonable behaviour
A spouse’s bad behaviour can be very relevant to the actual divorce proceedings, because under the current law ‘bad’ behaviour always has to be used for a divorce which is started less than two years after separation. The direct financial effect of this ‘bad’ behaviour is usually an order for the ‘bad’ spouse to pay the legal costs of the divorce proceedings (normally about £1,500).
The link between ‘bad’ behaviour and division of finances is less definite, and a spouse will very rarely get less of the family money because they have had an affair. However, a spouse’s behaviour during the marriage must be considered by a court (the court refers to it as ‘conduct’) when it is deciding what would be an appropriate financial settlement.
Is the behaviour gross and obvious?
The court’s view is that a spouse’s conduct will only affect the financial settlement if it is ‘gross and obvious’, and so serious that it would be unfair for it to be ignored.
Whether a spouse’s conduct has been serious enough to be classed as ‘gross and obvious’ will be a highly subjective decision. From the point of view of an experienced Manchester divorce solicitor, I know it when I see it!
What is classed as bad behaviour?
There are a number of forms of bad behaviour or ‘financial conduct’, as it is called in legal terms. It is always easier for the court to change the financial settlement if there is a direct link between a spouse’s conduct and the family’s finances, for example:
If a spouse has needlessly stopped working, or recklessly overspent, or gambled away a lot of the family’s money;
If a spouse has physically assaulted and injured the other spouse so that their ability to work and earn money has been affected;
If a spouse has been found guilty of a financial criminal offence, e.g. fraud.
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Other types of financial conduct – during the divorce
Dragging out the divorce proceedings, or running up needless and excessive legal costs: This isn’t usually reflected in the financial settlement. Instead, the court can order the guilty spouse to pay some or all of the other spouse’s legal costs;
Hiding assets or lying about your financial situation and not giving proper financial disclosure: This commonly happens, the most high profile example being the Supreme Court cases for Alison Sharland and Varsha Gohil. Rather than changing the financial settlement, the court can do one or more of the following:
Assume, when making a final financial decision, that the guilty spouse is much more wealthy than they say they are;
Order the guilty spouse to pay some or all of the other spouse’s legal costs;
If the lying is discovered after a final decision, setting aside that decision or financial court order and starting all over again.
Examples of non-financial conduct
It is less easy, but not impossible, for the court to change the financial settlement as a result of conduct which does not have a direct financial effect. The fact that one spouse has had an affair, or the usual arguing and name calling that often accompanies marriage breakdown will not normally be considered serious enough to be ‘conduct’.
Examples of non-financial conduct which have changed an award are:
violent or sexual assaults on the spouse, children or close family members;
refusing to move in with a spouse after marriage;
continued serious harassment of spouse’s new partner;
Inability to give spouse respect and affection.
How much does conduct change the financial settlement?
The impact of the conduct on the financial settlement will vary greatly, and entirely depends upon the particular circumstances of the case. Often, the person guilty of the conduct will already be in a bad position, for example in jail or having lost their job. However, even in those cases, the court can decide to reduce or even ignore that person’s financial needs because of their conduct.
Manchester divorce solicitors
Manchester divorce solicitors at Evolve Family Law in Whitefield are experts who offer a friendly and solution focused family law service. Call us or complete our online enquiry form.
Robin Charrot
Oct 26, 2015
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5 minute read
Should I Sell the Family Home Before or After my Divorce?
Taking the decision to separate may mean you want to ‘hunker down’ and not make any decisions about divorce financial settlements and the family home. Others may want to get the family home on the market and sold so they can make a fresh start, unhampered by the memories associated with the property.
In this article, divorce financial settlement solicitor, Robin Charrot, looks at the options of selling the family home before or after your divorce.
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form.
Selling the family home – getting the timing right
The important thing is to not rush into making decisions about the family home as whilst your instant view may be that you want to move because of the marriage breakdown, or you want to stay because the children’s school is nearby, feelings and circumstances can change over time.
There is no right or wrong answer about whether to sell the family home before or after your divorce. A lot will depend on your circumstances. For example, if you are in a six bed property with grounds and the children have grown up and left home, the separation may be the push to sell the family home and to do it now rather than wait until after the divorce.
Your views on the timing of the sale of the family home may be influenced by whether you think the property boom will end or not. If you are in the camp that thinks the UK is heading into a recession and a housing market crash, you may believe it is better to sell up now, rather than wait. Waiting may not be in your best interests if you will end up downsizing in a property slump.
A divorce financial settlement solicitor can help you look at your options to try and work out which one suits you best.
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Things to consider about the timing of the sale of the family home
There are loads of things to weigh up when you are debating about whether to sell the family home before or after your divorce. Here are just a few:
If you sell up, will you buy another house straight away or rent? Is renting a more expensive option or is it best in your situation as you will then be chain free when you find something else to buy
If you get off the property ladder by selling the family home, do you risk pricing yourself out of buying the house you want if property prices continue to rise?
Is the family home mortgaged? Is a preferential mortgage rate due to expire? Can you transport an existing mortgage to your new property? Will you be able to get another mortgage if you have recently started a new business or because of other changes in circumstances?
Is it too early to sell up until you know the value of all the family assets, such as pensions or the family business? You may prefer to stay in the family home by offsetting the value of other assets
Until you have more information about your partner’s income and your earnings capacity you may not know if you can afford to stay in the family home with your anticipated income and the potential for spousal maintenance payments
If the family home is owned in joint names, or your sole name, your ex-partner could refuse to cooperate with the sale of the family home until a financial court order is made. If the house is owned by you, your ex-partner could place an objection at the land registry to prevent a sale or remortgage. Alternatively, they may only agree to sign the sale paperwork if you both agree that all or a percentage of the net proceeds of sale are retained in a solicitors account until you have reached a full divorce financial settlement when the sale proceeds will be divided in accordance with the financial court order
Sale or delay
Sometimes people are anxious to sell up because they cannot cope with continuing to live with their ex-partner at the family home as the divorce financial settlement process is taking too long. A divorce financial settlement solicitor can:
Advise on whether you have the grounds to apply for an injunction order so you can stay at the family home until the court decides if the family home should be sold. This is known as an occupation order or ouster injunction
Help you understand the range of financial settlement court orders the court could make in financial settlement proceedings to assist you in reaching an agreement in family mediation or by through solicitor negotiations
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form
Robin Charrot
Oct 19, 2015
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5 minute read
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