Splitting house equity

I am preparing to file for divorce. My wife currently lives in the matrimonial home with our children but I want it sold. She has reluctantly come round to the idea after initially refusing to answer the door to estate agents. She is expecting a 50:50 split of the equity but has demanded an uneven split in her favour. Even though the mortgage is in both our names, she has never paid a penny towards it since we bought it in 2017. I have been advised not to pay any child support for as long as I am paying my wife's share of the mortgage as well as my own.

I think the house equity should be more than a 50:50 split in my favour as I have always paid my wife's share of the mortgage (as well as all household bills). Do I stand a chance with this argument and is it worth pushing for this as the divorce proceedings get kickstarted? I know if the matter went to court there'd be more chance of plaiting fog than me finishing up with more of the equity than her but to be blunt, I am hoping to exploit the fact that she will be unrepresented by a solicitor and is ignorant of the law to my advantage.

Of course, I very much don't want to get to the costly stage of fighting in the court in total disagreement but shouldn't I at least start with a bullish and ambitious approach and essentially see what I can get away with? If she accepts my first offer (unlikely) then happy days for me; if not then In practice it might result in me softening my stance and offering her more equity than my initial demand as a compromise but still end up with more equity than I would if I simply concede to a 50:50 split straight off the bat. I don't imagine she'll go along with my starting offer but in the same vain why should I go along with hers? At the end of the day divorce is a ruthless game and I should absolutely back what I perceive to be in my interests, not hers, and vice-versa, and to a layman with no knowledge of the law but a commoner's sense of "fairness", it doesn't seem unfair for the party who has paid all of the mortgage to then feel entitled to all (or most) of the equity.

If I should do as I'm suggesting here, what equity split in my favour would be hardline but "fair enough" as an ambitious starting point for me? Would it be wiser try to sell the house before or after the divorce is completed, or doesn't it really matter either way?

According to the CSA I should expect to be paying around £600 per month for the children going forward, which is absolutely fine by me as I am currently paying £1,300 per month for the mortgage that I just want rid of.

>>I think the house equity should be more than a 50:50 split in my favour as I have always paid my wife's share of the mortgage (as well as all household bills). Do I stand a chance with this argument

Absolutely no chance at all for the very good reason that contributions to a marriage are not limited to financial contributions. The law specifically recognises that other contributions such as raising and caring for children have weight which is more than equivalent to financial contributions.

In this case there are dependent children. If the house is sold then this case will be decided on the basis of where you will each live afterwards and how that alternative accommodation will be funded. In assessing this the needs of the children will be put first. Unless you have limitless resources these factors will be very much more important that who contributed what.

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David Terry
Absolutely no chance at all for the very good reason that contributions to a marriage are not limited to financial contributions. The law specifically recognises that other contributions such as raising and caring for children have weight which is more than equivalent to financial contributions.

I don't know whether this makes a difference but apart from the periods of statutory maternity leave my wife has always worked. She still never parted with a penny towards household expenses. It's not as if she's been a full-time housewife and made an equivalent contribution that way. In fact I often had to look after the children too while she worked weekends or evenings.

I know I'd stand no chance if this went to court but my point is surely there's nothing legally stopping my wife from agreeing with me and splitting the equity roughly on the lines I want? Let's say I aim high and say I want an 80:20 split in my favour because I've paid for everything. If she then fires back with a 60:40 counter-offer but we end up compromising down the middle with 70:30 in my favour, what's to stop us from doing exactly that if we agree to split it that way, despite the fact I know it certainly wouldn't go that generously in my advantage if we were in total disagreement all throughout and had it decided by the court?

This is what I meant by suggesting that I should try to "get away with" whatever favourable terms I can if she and I can agree between ourselves. My wife certainly would get away with anything she thought she could, and I have no doubt that if she could strip me of every penny to my name with a click of a button, she would. I don't see why I shouldn't take a similar strategy. After all, in a divorce our interests are diametrically opposed and I won't apologise for going into this with my self-interest at the centre of my approach.

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David Terry
If the house is sold then this case will be decided on the basis of where you will each live afterwards and how that alternative accommodation will be funded. In assessing this the needs of the children will be put first.

If my wife decided against having the house sold, is there a chance that the court could force me to continue paying the mortgage, without her contributing a penny? Or if the house is sold could they force me to pay rent for another property for her and the children? Do courts generally prefer maintaining home ownership over renting or are they regarded equally as me necessarily maintaining the family?



Edited 1 time(s). Last edit at 10/01/2023 02:36PM by inquisitive.

>>I know I'd stand no chance if this went to court but my point is surely there's nothing legally stopping my wife from agreeing with me and splitting the equity roughly on the lines I want? Let's say I aim high and say I want an 80:20 split in my favour because I've paid for everything. If she then fires back with a 60:40 counter-offer but we end up compromising down the middle with 70:30 in my favour, what's to stop us from doing exactly that if we agree to split it that way, despite the fact I know it certainly wouldn't go that generously in my advantage if we were in total disagreement all throughout and had it decided by the court? <<

Well, you could try that as a negotiating strategy. Nobody with any sense starts any negotiation off with offering the very maximum they can afford. Having said that, whether your strategy will succeed is another matter. For a start there is the small matter of whether such an extreme initial proposal might well result in your wife saying, 'Stuff it. This is so unreasonable I am not even going to try negotiating with you. I am going to let a court decide.' If I were advising your wife that is exactly what I might suggest she did.

Then there is the issue of whether what you agreed (assuming your wife was unwise enough to negotiate on this basis and agreed 70/30 in your favour) would be approved by a court. I suspect not. Most judges would say, 'There are children here. Why is the division not 50/50 or even in the wife's favour bearing in mind the husband's earning capacity compared to hers'.

>>If my wife decided against having the house sold, is there a chance that the court could force me to continue paying the mortgage, without her contributing a penny?<<

Not exactly. They would order you to pay child and possibly spousal maintenance. And your wife would be expected to pay the mortgage from all her sources of income including that. The court wouldn't actually order child maintenance (unless as part of an agreed consent order). Rather they would compute what would be payable according to the CMS formula.


>> Or if the house is sold could they force me to pay rent for another property for her and the children? Do courts generally prefer maintaining home ownership over renting or are they regarded equally as me necessarily maintaining the family?

Courts prefer owning over renting where there are children involved because it should result in greater stability. They will usually only consider renting when there is really no feasible alternative.

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David Terry
Then there is the issue of whether what you agreed (assuming your wife was unwise enough to negotiate on this basis and agreed 70/30 in your favour) would be approved by a court. I suspect not. Most judges would say, 'There are children here. Why is the division not 50/50 or even in the wife's favour bearing in mind the husband's earning capacity compared to hers'.

Interesting. So courts can and do override a voluntary financial settlement? I assumed that when the spouses agree on a divorce settlement, the court basically rubber stamps it. I didn't think it intervened unless there was disagreement. How is it the case, then, that some wives (a small minority, I admit) choose to only take out of a marriage what they brought into it when they're entitled to much more? Why doesn't the court, in this scenario, intervene?

Thank you for the info in the rest of your reply, too.



Edited 1 time(s). Last edit at 10/01/2023 05:10PM by inquisitive.

Courts do not 'rubber stamp' this type of agreement. The courts exercise their own judgment in the matter and if they think proposed terms of settlement are unfair they will not approve them.

As to comparing A with X that is a mug's game. Almost all cases are different in one way or another. Looked at more closely there are almost always differences. For instance, here there are dependent children. In other cases there may not have been etc.

In that case, would it work more to my advantage if my wife and I agree on an equity split between us before the divorce, which might, provided she agrees, be more favourable to me than her legal entitlement as ordered by a judge, sell the house and split the equity, and only then file for divorce, on the basis that when it comes to a financial agreement/order, there will no longer be an owned home/equity to split?

That may work depending upon what you each do with the money. However, it is hard to see why your wife would agree. She will almost certainly put the needs of the children first.

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David Terry
That may work depending upon what you each do with the money.

How is what we each do with the money relevant? If we've sold the house and split the equity by the time it comes to the divorce I didn't think there would need to be any reference to it in the divorce/financial settlement because it'll no longer be a marital asset?

>>How is what we each do with the money relevant?

It is very relevant. And, no, I am not going to elaborate because it seems to me that all your questions relate to how you can defeat the legitimate claims of your wife. That is not something I want to assist you with.

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David Terry
It is very relevant. And, no, I am not going to elaborate because it seems to me that all your questions relate to how you can defeat the legitimate claims of your wife. That is not something I want to assist you with.

Of course I want to defeat her claims. Why wouldn't I? It's a divorce. Her interests and mine are diametrically opposed. She will want to seek what is in her best interest and I want to seek what is in mine. She wants to defeat my claims too.

I don't see anything wrong with this in an inescapably antagonistic setting. The reality is that polarised starting positions usually meet somewhere in the middle as an end point. I will not (and cannot) get roughly what I want without her consent and agreement anyway.

Resorting to what legal entitlements are is for when there can be no agreement. Until then, why would I concede everything knowing that she has, by default, an upper hand over me when there is an alternative?



Edited 1 time(s). Last edit at 10/03/2023 03:44PM by inquisitive.

The 'alternative' you mention basically involves deceiving your wife. You can attempt to do that if you want but only a certain type of person would want to assist you in such an enterprise.

Deceiving her would be giving false information about the house price or failing to declare hidden capital. I'm not doing that.

It is not my responsibility to give my wife, who I'm divorcing, legal advice and to inform her of her
rights and entitlements. So where is the deception?

She is free to reject my offer and I know it won't go my way if she does. What is the point of a negotiation if I simply concede her legal entitlement as a starting point, which I can do nothing to resist or make a counter-offer to?

Unless your ex wife to be is living in a vacuum, you can be sure that she will be talking to people about what is happening and will soon find out that she is entitled to more than you are proposing and will more than likely be told to engage a solicitor of her own.

>>Deceiving her would be giving false information about the house price or failing to declare hidden capital. I'm not doing that. <<

It is rather more than that, though, isn't it? Your argument that you want more than half the equity because you have paid the mortgage. That is presumably what you will be telling your wife as an argument. However, you know for a fact that whether you paid the mortgage or not is totally irrelevant. What is relevant is where your wife and children are going to live post divorce and how that will be paid for. Yes, you can call what you propose doing as 'negotiation' if you want. Others may well apply a different description.

Anyway, as Andy says, I think you will find that your wife is not quite a naive as you would obviously like her to be.

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David Terry
It is rather more than that, though, isn't it? Your argument that you want more than half the equity because you have paid the mortgage. That is presumably what you will be telling your wife as an argument. However, you know for a fact that whether you paid the mortgage or not is totally irrelevant. What is relevant is where your wife and children are going to live post divorce and how that will be paid for. Yes, you can call what you propose doing as 'negotiation' if you want. Others may well apply a different description.

The mortgage payments are indeed irrelevant if we are battling it out in a courtroom with recourse only to the letter of the law. They are perfectly relevant to a private agreement she and I might come to based on what we agree and accept to be fair to each other in the circumstances.

If a tenant gives two months' notice to leave a property, but moves out after one month and the landlord agrees not to chase him for the remaining month's rent because he has already moved out, is that somehow unjust or deceitful because they haven't seen it as necessary to recourse to the full letter of the law? Is the tenant obliged to inform the landlord that he can charge another month's rent if the landlord is unaware of this?

I don't see why the principle is any different in a divorce. If my wife is entitled to a 60:40 split in her favour, she can find out for herself, hire her own solicitor, and go for it. Until then, I don't see why what I'm proposing is wrong. Indeed, I don't see what the point of me hiring a solicitor to represent my interests would be if I'm supposed to just concede whatever the letter of the law says anyway.

What you propose doing is representing something to your wife that you know not to be true - that is that the fact that you have paid the mortgage entitles you to a greater share of the equity. You know perfectly well that is not true but that is in effect what you intend telling your wife. Call that 'negotiation' if you want but don't be surprised if others see it differently.

I'm not saying it legally entitles me to a greater share, which I concede would be deceptive; I'm arguing that it's fair for me to get a greater share. A fair settlement is what we subjectively deem and agree it to be.

If she realises her legal entitlement and wants to go for that, that's her prerogative. But it's on her to do her homework, not me. And in that event, I haven't lost out on any more or less than I would by resorting to legal entitlements as a starting point.

>>I'm arguing that it's fair for me to get a greater share.

Well, you can argue that but anyone, including your wife, is going to say, 'Why?' What are you going to say then?

In any event, I think all of this is likely to be theoretical. I can't see many wives who have the care of children thinking that what you propose is fair.

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David Terry
Well, you can argue that but anyone, including your wife, is going to say, 'Why?' What are you going to say then?

If it's a discussion between me and my wife I will say because I have paid her share of the mortgage and bills from day one, and because she caused the breakdown of the marriage. This is my idea of fairness and it might be hers, too.

If she disagrees and hires a solicitor who fires back that my wife is legally entitled to more and that's what she wants to do, I will concede because I can't win.

All I'm suggesting is I don't see why my end point (purely from the perspective of legal entitlements) ought to be my opening offer.

If I concede from the start, I have a 0% chance of getting what I want and feel is fair; if I do as I suggest, I have a 50:50 chance, or at any right a better-than-0% chance.

>>If it's a discussion between me and my wife I will say because I have paid her share of the mortgage and bills from day one, and because she caused the breakdown of the marriage. This is my idea of fairness and it might be hers, too. <<

I doubt that your wife will agree. In my experience the breakdown of a marriage is rarely one sided. Nor, for that matter, are finances decided on the basis of who paid how many pounds. The fact is that there are dependent children here and it is not a short marriage. I dare say your wife knows this. I doubt that depending on her ignorance will actually work.