Marilyn Stowe Blog

Hi Marilyn,
I’m currently studying Law at University, and am working specifically on pre-nuptial agreements.
I would be really interested to know your thoughts on the current state of pre-nuptial agreements in England and Wales. I understand that the Law Commission released it’s consultation paper last year with a view to potentially introducing legislation this year, but do you really think this will happen? Is there an appetite to make them legally binding? Or, do you think the case of Radmacher has gone far enough?
The topic of pre-nuptial agreements greatly interests me, and the more I read, the more I can’t really decide my opinion on them!
I love reading not only your past blogs on pre-nups, but all your posts and it would be fantastic to hear your views on this! Thanks for your time.

My partner and his ex wife were married for 7 years and had a child within the marriage. Both maintenance and spousal maintenance payments have been made since their divorce with the child maintenance recently ceasing as the child is 18 and at University. My partner would now like to cease the spousal maintenance payments (the agreement states that this will not cease unless she remarries) as his ex wife is now cohabiting with her boyfriend of over 10 years and has a full time job. She says she requires the maintenance to continue in order to continue supporting her child. My partner is happy to provide for his child (he has always done this more than adequestely) but does not wish to give the money directly to his ex wife for her use and distribution and prefers this to be an agreement between himself and his child. His ex wife is unwilling to agree to this. Can you offer any advice especially in light of the Grey v Grey Case. Thank you

Im currently going through an fdr and have my second stage hearing in 4 weeks time, the only thing that was arranged at the first hearing was an agreement to have a valuation done of our property that we jointly own. My ex partner has lied on her form E regarding saving accounts that she has and has lied regarding a loan that she says that she has had off her parents to buy her car but it was paid for with the proceedes of and insurance claim which can be proven, but to prove this i would need the courts to reqeust copies of her bank statments that are three years old also the valuation that came back of our property was £25000 less than the value of a property that is identical just a few doors down which is currently on the market and £27500 less than an identical property that was sold in the street in february 2011 which is the only prperty to be sold in this street since 2009 would i have a chance to over turn this valuation and to get a genuine valuation done. The marrage had broken down and my ex took it upon her self to unlawfully exclude me from the marital home with out reason, so through the whole procees i have been trying to do this in an amicable way but have been troubled by her non cooperative manner when i asked for my 3 valuation for my form E i wasnt given access to the marital home and the valuer had to do a valuation on a drive bye basis to this end he came up with a valuation £15000 higher than what was produced on the jointly agreed valuation which just so happens to be the same as the valuations that my ex partner has had done but given the current market in the street and the new enterents to the market is way below par. What iam asking is would i be able to over turn this or do i have to insist on a new valuation as this is vitally important as this is the only asset and the only thing i have as all my posessions are still in the property and been uable to retrive them iom in a desperate situation and feel my solicitor is only going through the motions hope you could shed some light thank you eddie

Hi Marilyn,

I’m having to represent myself. I applied for a divorce and of course my wife then applied for financial relief. I gave her the house, offered money out of my pension, despite having paid a very large sum in to one in her own name so if we ever did get divorced she would leave mine alone. I even gave her a large lump of money a few days after I left. Anyway, her financial application has been dismissed, thrown out, by the Judge, she did not turn up for the last two hearings, perhaps it was that, or the fact that we have an Imerman vs Imerman and the Police are involved (i’ve not hidden any assets though), anyway her application has been thrown out and I applied for my Decree Absolute, which has been granted yeah!!!!!!!!!!!, sorry…..So my question is can my wife bring another financial application for relief given a) her first application was thrown out and b) we are now divorced?

Your help would be greatly appreciated.

my husband has now petitioned for divorce and asks that I sign over the property in full to him….no financial gain to me. His reason being that he bought it with the proceeds of a sale of a house that he lived in with mortgage when I moved in with him prior to our marriage…he subsequently cleared that mortgage with monies left to him by his mother. we married in 2004 and then in 2006 bought the house in Spain…him putting my name on the deeds….have I any legal rights to any of this property?

Hi Amy
Thanks for your question. There are a number of factors which might impact on how the court would address your case. It is indeed possible that the value of your pension be “offset” against the equity in the house, but only if it is right in the circumstances. The court would need to consider all the circumstance of the case, including your respective earning positions, the value of the assets (including the house), the length of the marriage and your ages, and the respective contributions each of you made throughout the marriage. Further, the house is a liquid capital asset, whereas the pension fund is illiquid, and the impact of this is that it is not always so simple as comparing the value of one against the value of the other.
The reality is that the court would seek, in considering distribution of the assets, to ensure that both of you can be adequately housed, and would be unlikely to order that you retain all of your pension but have no share of the equity: a pension isn’t much use in the intervening years if you have no roof over your head! It might be that the house is sold and the equity shared between you (not necessarily in equal amounts) to enable you both to rehouse, subject to your respective mortgage capacities. To advise you more fully I would advise consulting a solicitor who can take all the necessary further information from you.

Dear Jacky
Many thanks for posting your question. As you will be aware, the s25 factors are those factors set out in Section 25 of the Matrimonial Causes Act 1973 which the court will consider when making any financial settlement. These include:
• The parties’ income, earning capacity, property and other financial resources
• The parties’ needs, obligations and responsibilities
• The parties’ standard of living enjoyed during the marriage
• The parties’ contributions both financial and otherwise
• The parties’ income and employment prospects
• The length of the marriage and the ages of the parties
• Any health issues/disabilities

I would recommend that you use each of the factors as headings in your statement, and that you deal with each in turn, providing a comprehensive summary for the court of the issues in your case. Of course some may well not be relevant. It may be useful to exhibit evidence to the statement, but only where the court has not had sight of that information previously.
Remember, you must be careful in the statement not to refer to discussions between you and your spouse at the Financial Dispute Resolution Hearing (“FDR”), or to any comments made by the Judge at that hearing, as the Judge at the Final Hearing must come to the case without any knowledge of the negotiations at the FDR.
As an extra point, don’t forget to provide to the court and to your spouse (or his solicitors) updating financial disclosure (e.g. more recent bank statements) prior to the Final Hearing itself. Best of luck.

Jan
I appreciate your frustration. Orders for spousal maintenance, and particularly for lifetime spousal maintenance, are often the source of heated arguments. I cannot give advice specific to your financial circumstances without knowing the full picture as to your husband and his ex wife’s respective financial positions. However, it may be useful to consider the following. Firstly, as I said to Jill in the question above, I would advise against your husband taking any steps to terminate the maintenance without his ex’s consent, or a court order. The implications of this are likely to be costly. If his ex will not agree to any termination of maintenance, or even a reduction, your husband would have to apply to court to terminate the maintenance. Both your husband and his ex would be required to produce and exchange financial disclosure, and the court will review all the circumstances of the case, including his ex’s current income position, and her realistic earning potential. The fact that the children are over 18 may well be relevant, but it will depend on the ex’s income and outgoings. NB, whilst your husband’s income might not have changed, the court would also have to consider the impact of his remarriage to you, and your financial position, as any income received by you will assist your husband in meeting his outgoings. I hope this is of some assistance. Again it would be wise to take detailed legal advice.

Lisa
Let’s start with how the court might address your case. In trying to achieve a fair result for the parties, the court will seek to meet each of your needs first, by reference to the s25 criteria, found at s25 of the Matrimonial Causes Act 1973. These include your respective earning capacities, your contributions to the marriage and each of your assets. Your ability to rehouse is going to be relevant, BUT that doesn’t mean that your husband will necessarily take all the equity in the former matrimonial home in exchange for you retaining your family home. To advise you further, we would need to understand the values of the properties, along with the contributions that each of you made. It may be that, having considered the figures, your husband would be expected to pay you a proportion of the equity by way of lump sum. Remember, any claim that your husband makes against your property can only be against your share. Is there a declaration of trust setting out the proportions in which the property is owned, or with reference to who can live there?
As you may be aware, the court has the power to make orders with regards to your pension, but again this will depend on your respective pension positions. You are both young enough to each build up your own pension provisions.
Finally, if your husband’s salary has increased dramatically, you need to consider whether this might be a case where maintenance should be payable to you.
Regarding any possessions of yours which remain in the former matrimonial home (in your joint names), you are well within your rights to enter and collect your belongings. The police may well assist in providing a community support officer to attend the property with you. However, if you think this likely to be too aggravating, ensure that there is provision in the final order for your husband to make them available to you.
You mention your husband’s conduct in relation to the financial proceedings; namely delays in providing his Form E, and incomplete or at worst dishonest financial disclosure. Only in very extreme cases will conduct by one party directly impact on the settlement imposed by the courts, but it may be possible to seek a costs order against your husband at the next hearing, relating to any extra work your solicitors might have done to deal with his non-cooperation, and any delays it might have caused. Have you had the opportunity of preparing a Questionnaire (usually prepared in advance of the FDA) on your husband’s Form E? This would be your first port of call to address the issues of lack of disclosure and any discrepancies.

Hi Johannes

I would urge you to make an application back to the court which originally made the order in August last year if you need more time to buy your ex-wife out of the property. The English court retains jurisdiction over its own orders, and you may be incurring interest against the debt. The application would be to vary the consent order, and you may also seek to reduce the amount payable. I appreciate that it may well be difficult to make such an application whilst you are residing in Portugal, but I would advise strongly against letting matters drift. Remember that your ex-wife can take steps to enforce the consent order at any point now that the payment is overdue. Best of luck.

Dear Evelyn
There is an obligation on both parties to provide full frank and honest disclosure of their entire financial position to each other and the court.
I would suggest you obtain a copy of Form E. This document is what is normally provided to start the ball rolling in terms of disclosure. Both parties Forms E are exchanged with the other and each party considers whether in his or her view that is sufficient to allow the case to proceed. If either party thinks it is not, a Questionnaire can be prepared seeking further disclosure. It will then be up to the District Judge at the First Appointment to decide how much more should be provided if the content of the Questionnaire is opposed.
Of course the parties can agree if this is to be negotiated out of court, to avoid the completion of a Form E and they can decide to accept as little disclosure as they want. If an agreement is reached the overall financial position of the parties must be disclosed to the court at the same time because the court has to consider the terms of the proposed order in the context of the parties finances.

Dear Jayne

I note that you have indicated that there are impending proceedings regarding your home, but from the details you have provided it is not entirely clear what those proceedings are. It does however seem to me that you need to take some urgent legal advice to protect your position. You indicate that your ex-husband’s ex-wife is now applying to the Courts to realise an interest she has in your home. Clearly if you are legal owner of that property but it forms part of your ex-husband’s divorce and financial proceedings then you should have been notified of those proceedings and had an opportunity to become a party to the case. If no such notification was provided then there may be grounds for matters to be redressed. However, it is evident this is a very complex case and without the benefit of the full facts and details, it is impossible for me to advise you. We do provide a free legal advice clinic which is held on Monday nights between 5pm and 7pm. Our legal advice clinics are held at each of our offices – London, Hale and Harrogate – please contact Morna on 01423 532600 for an appointment if you would like us to advise you further.

hi marilyn, thankyou so much for your reply, the hearing set for next month is the final divorce hearing , this has been going on for aproximately 2 years now and i was notified that he had lost half of the house to her on the day of the divorce, i sent an email to your office a few days ago explaining things in more depth than i want to make public, thank you so much for yor advise, i do intend to take this as far as i can, i have brought up my children without their father to be good honest people and i am so proud of them all, and it is for them that ihave to fight this, the law is fundamentaly flawed, allowing a woman who had nothing to do with the purchase or up keep of the property, to be openly handed half of it in a divorce settlement of a man who only contributed for 2 years to the mortgage. i will take your advise and phone, thank you again j. doe

Hi I am in a frustrating situation and have been for years and would welcome some advice. Having eventually finalised a 3 year divorce a couple of years ago I find my ex is still being difficult and controlling when it comes to selling the FMH. The judge ordered maintainable for me and my children from which I had to pay the bills, insurances and mortgage until the house sold. 3 years on he is still refusing offers. The order stated that the house is to sell and should it reach above the price given to court at the time we both benefited from the extra. If it dropped below that figure I received a fixed amount and he the remainder after fees etc were paid. The house is falling into a poor state as I cannot afford to make the improvements needed, and my ex states all repairs are my responsibility…. He has stated that he will not fund any improvements or repairs to the home. I feel so frustrated by being tied to a situation I am paying for but have no control over. I have been told that if it went to court he would be awarded the house as he has the capital to buy me out… And if I wanted the house I would have to pay the full asking price. There is much more detail I could state but wish not to at this stage eg the refusal to give me his address! Regards