Fair divorce

My friend, a Barbara, has been married for 24 years. She left the matrimonial home 6 months ago and is living in rented accommodation (actually a room at her sisters).

They have settled the house already, with Barbara receiving a cash lump sum in exchange for giving up any claim to the house equity. The house is now in the sole name of the husband. Both are happy with that arrangement.

There has been some discussion of possessions and Barbara has confirmed in writing what she would like and this has been agreed in writing, although the things have not been removed from the house.

Barbara has a low income, working full time, earning £22K. The husband has a much better job and earns approximately £50K.

There are no other notable assets that Barbara wishes to contest other than his pension.

The exact value is unknown but it is considerable.

Barbara's plan is to formally tell her husband that she is filing for divorce and ask for mutual basic financial disclosure. Nothing formal like a Form E1, just a one-page summary to include pension, savings, investments, cash and any significant assets. Whether this will be forthcoming is unclear.

My understanding is that Barbara is entitled to half of his pension value and half of any significant assets (aside from the house). Given that she is now in rented accommodation, rather than a two-bedroomed house you could argue her standard of living has dropped, so would a spousal payment be reasonable?

Barbara is keen to get things moving and will reiterate the need for divorce and then file next week.

Any advice would be much appreciated.

It doesn't matter in what format disclosure takes place if it is to be done on a purely voluntary basis. The financial position of most people can usually be set out on one side of A4. Having said that, it is important that there actually is proper disclosure. She cannot make any informed decision without, for instance, knowing what the exact value of her husband's pension is. And that should not be a matter of just what he says. There needs to proper documentary evidence to show what the position is.

You say that Barbara has received a capital lump sum so it is not so simple as saying she lives in rented accommodation. Presunably she sought a capital lump sum for some reason.

If there are no dependent children there is no very good reason why spousal maintenance should be paid in these circumstances.

Finally, Barbara should take independent legal advice of her own BEFORE she enters into any sort of final agreement. What she (or her husband) thinks fair might be unfair for all sorts of reasons. She should not sign anything final before first taking legal advice.

Thank you for your prompt response. I thought there was a very slim chance of a spousal payment, especially considering the house has been settled. There are no dependents.

If his (and her) finances are set out simply and with appropriate documentation is it reasonable for Barbara to expect half of his pension? She has a couple of small pensions but has had many low income jobs throughout their marriage.

She is not greedy, but does expect to receive what is considered fair under divorce law.

Any final agreement will be checked by a solicitor before being signed.

Please note. The house has NOT been settled. There is no divorce let alone a final financial settlement made within that divorce. Any less formal arragement such as this is potentially capable of being re-opened. If W has pensions worth A and B and H has a pension worth X then there is no obvious reason why W should be entitled to half of X. The starting calculation would be half of A plus B plus X taken from X assuming X is significantly bigger than A plus B.

Thank you. They do have a signed legal agreement for the house arrangements and Barbara has received a lump sum and the house is in the husbands name. Can this arrangement simply be acknowledged and built into the final divorce financial agreement?

Thank you for clarifying the starting point on pensions. Makes perfect sense than anything Barbara already has should be offset against his. X will be significantly bigger than A + B so I am certain she is entitled to some redistribution.

>>Can this arrangement simply be acknowledged and built into the final divorce financial agreement?

It can, yes. Mind you this presupposes that the arrangement is basically fair. A court will not approve an arrangement which is unfair whether that has been 'agreed' or not.

Thank you. Understood. This check is in place to prevent one party railroading the other I assume?

Barbara is a nervous character who wants to avoid confrontation at all costs. Her H is verbally aggressive and quickly takes control, intimidates and confuses her. He wants to file jointly, as he wants the maximum degree of control over the process I think. I have advised Barbara to avoid direct confrontation/communication for now and to file individually so that she has control of the timeline and stages. In a one on one situation she will acquiesce on pretty much anything and is scared of even telling him she doesn’t want to file jointly. At least, currently, they both agree solicitors should not get involved but there have been no discussions about finances yet!

>>At least, currently, they both agree solicitors should not get involved but there have been no discussions about finances yet!

I really do think Barbara should get her own legal advice as soon as possible. She does not necessarily need formally to instruct a solicitor to act on her behalf but she does need basic legal advice so that she understands what her legal position is rather than taking it from her husband. This is particularly the case where there is a power imbalance as here or where one spouse is less assertive than the other (again as appears to be the case here).

If she does not do this there is a very real risk that she will be seriously disadvantaged. It is already a warning flag that she seems to have settled the issue of the house with her husband on terms which look more favourable to him than to her. It probably suits her husband that Barbara does not seek legal advice but the one important thing you could do is to impress on her how important it is that she does take legal advice in order to make sure that the decisions she takes are properly informed.

Thank you - I will impress that upon her. I have seen the legal agreement for the house and it does seem fair from a financial point of view.

The house was valued independently at £260K. The outstanding mortgage, again documented, was £130K, leaving £130K in equity. Barbara received a cash sum of £60K, which she was content with. She did not want the house to be sold.

This is a long marriage and the husband earns more than twice as much as the wife. He gets the house. What does she get? On her income she will struggle to buy a place comparable to the one her husband lives in. Whether this arrangement is 'fair' is debatable to say the least.

That's a good point - that you for this consideration. I will tell her to raise this point when she seeks legal advice.