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Disclosure of future housing during Settlement Proposals

Posted by PeterG 
Disclosure of future housing during Settlement Proposals
February 07, 2021 05:32PM
My wife and I separated nearly two years ago. I am 59, she is 57 and all children grown up and left home. After over 18 months of the legal process we have reached settlement discussions, with us both hoping that this can be reached without going to Court.
On paper, we are quite wealthy, although the vast majority of our wealth is tied up in my 50% shareholding in the family business.
My Barrister has suggested that the settlement discussions be based around the fact that I am the stronger party financially, whereas my wife stopped working four years ago . Therefore, it has been proposed ( without prejudice) that she will keep the lions share of the equity in our family home in order that she can buy a 3/4 bedroom house, mortgage free, whereas I will have a much smaller share of the equity but hopefully enough for a deposit on a mortgage and then repayments until my mid-seventies.
I will also pay substantial maintenance to my wife until I am 65.
At 65 I will also be expected to pay her a substantial lump sum, which will only probably be possible by me selling my shares in the family business.
I was relatively happy with this proposal, as on paper I am keeping a larger ratio of the assets (i.e my shareholding in the business which existed many years prior to our marriage). I am prepared to be very fair during this process and have been entirely transparent with disclosure.

However I have since learnt that her new partner, has purchased a large property and she will be moving into the property after the Divorce. I am also aware that conversion work is to be carried out at the property prior to moving in and that my wife and her partner are joint clients of the architects involved. (Rumour has it that he will be transferring the property into her name after the Divorce).Her partner is wealthy, does not live local and works away. No doubt they will be living together at weekends.
I am actually pleased for her and wish her well with her future with her new man.

What is disappointing, is that the whole settlement discussions were based around my wife's housing needs and income needs. Had we known that her housing needs were actually being catered for, so to speak, our approach to the settlement discussions might have been very different. At present she will have access to funds from the lions share from the sale of our home, whereas I will be left with very little liquid assets and will struggle a little in the early stages to set up a new home. No doubt I will hopefully be able to realise the net value of my shareholding in the business in future years, but this is a little risky should the business fail or under perform in future years.
Of course the maintenance I will pay was based on her living alone to re-build her life.
My question is, should her housing plans with her new partner have been disclosed prior to the Settlement discussions?
Likewise, when she moves in with her partner, albeit he will only be there at weekends, could this potentially reduce my maintenance payments.

I am thinking that I may be better to slow this whole process down and actually look to getting matters resolved in Court as the Judge will not be made aware of any previous settlement proposals. She will also be required to disclose her relationship with her new partner and no doubt they wont want to move in together until the Divorce is finalised. I do not particularly want to go down this route as we both need to move on with our new lives.

At present the family home is in joint names and is not on the market for sale yet, although my wife is assuming that this will be taking place soon and is expecting to receive the lions share of the equity which will no doubt be used towards the conversions work of this luxurious new home, whereas I will be lucky to buy a decent flat!
Re: Disclosure of future housing during Settlement Proposals
February 08, 2021 11:14AM
Without figures it is impossible to speculate on this. What I will say, though, is that when an ex wife is in receipt of substantial periodical payments it is not uncommon for the recipient to show a marked reluctance to remarry and to play up the precarious nature of any new relationship.

>>should her housing plans with her new partner have been disclosed prior to the Settlement discussions?


>>Likewise, when she moves in with her partner, albeit he will only be there at weekends, could this potentially reduce my maintenance payments.

Yes, although as I said above typically yarns are often spun in this situation so as to keep a good source of income.
Re: Disclosure of future housing during Settlement Proposals
February 08, 2021 01:52PM
Thank you for your helpful reply.
With regards to the figures it is a little complicated, but just to summarise below and how the proposed settlement was left on the table:-

50/50 Pension split - I am happy with that

Equity in Family Home - £ 600k - Wife will keep all in order to set up new home and be mortgage free

4 x Other Commercial Properties - Owned jointly but shared with three other people - Our Share is worth £400k - I will keep our share in those properties

My 50% Ownership in Family Business - The Net value of my shareholding is £2m. The business was in existence long before I met my wife. I will retain all my shareholding but will be required to pay wife £600k at my 65th Birthday which will no doubt require me to sell my shareholding to access these funds.

Maintenance to wife until I am 65 - £42k per annum (£ 250k over 6 years), My Net Income is around £100k per annum.

On paper this looks quite good in my favour 60/40, but I must stress that none of my assets are liquid and I am very reliant on the value of the business being at the same level at it has now been valued in six years time. The uncertainty of this worries me.

I was reasonably happy with this, apart from the fact that no allowance has been made for me to access funds from the equity in our home to raise a deposit for a mortgage. I was expected to have to rent a home and re-build my life financially.

What has disappointed me is that both parties have spent probably £15k each in attending a remote meeting with Counsel and our respective solicitors. Her housing arrangements with her new partner were not disclosed from the outset and I have only found out since.
(This is on top of the £40k I have already spent before reaching this meeting between Barristers)

I am not disregarding her entitlement and want it to be fair. However, I do believe that the approach from my Barrister might have had a very different slant had he or I been made aware of her future housing arrangements with her new partner and perhaps the proposed Outcome would have been more in favour of my own personal housing needs and not allowing her to access the entire liquid asset (i.e. the family home).

A date has been set for the First Hearing in April, but we were hoping that a Settlement agreement could be reached beforehand.

I am inclined now to actually reject all offers and let this go to Court and allow the Judge to make a decision.
Re: Disclosure of future housing during Settlement Proposals
February 08, 2021 05:50PM
>>What has disappointed me is that both parties have spent probably £15k each in attending a remote meeting with Counsel and our respective solicitors.....

A date has been set for the First Hearing in April, but we were hoping that a Settlement agreement could be reached beforehand.<<

I am very, very much against this type of so called 'round table meeting'. I have never known one result in settlement and that is not surprising because there is no way of forcing the issue at such a meeting. What it actually does is to gobble up costs and in this case it seems to have done so on a grand scale. The only people who have gained out of this have been the lawyers.

In practice it doesn't take long to establish whether the other side is serious about wanting to reach agreement or not. If there is no positive sign of that then it is much better to issue a court application immediately. This does not prevent you reaching a voluntary agreement at any time but it does ensure that there is a time table in the background which has a finite end. Ultimately if the parties cannot reach agreement then a judge will decide. That does tend to concentrate minds in a way that a 'round table meeting' never does.

Also, within the court process there is an appointment which is basically mediation led by a judge. Rather than each side stating their views and talking over one another a judge will express an opinion (on a without prejudice basis and the judge who expresses an opinion cannot thereafter be involved in the case). Most cases (say about 70%) are settled at this appointment (called a Financial Dispute Resolution meeting or FDR for short). This is much more effective than any round table meeting because of the input of an independent third party.

For what it is worth I think you would be very unwise to enter into the terms of settlement you have described. All the risk is on you. That is not sensible. Furthermore if your wife is going to be able to buy a property free of mortgage (although you are not) paying her £42K per annum after tax seems bonkers. She is not entitled to half your income. If a person has to pay that level of maintenance then most people would think twice about getting out of bed in the morning. This is excessive. And anyone who thinks that a person in receipt of this level of support is going to willingly give it up by remarrying or provably cohabiting on a permanent basis doesn't know how the world works.

If the business was in existence before you met your wife and she has not been involved in the running of it then it is arguable that it is non matrimonial property. Although I say 'arguable' rather than definitively saying that it is I don't think it is a point that you should readily concede to your wife. It makes no sense to assume a liability to pay a large lump sum to your (ex) wife in the future when (a) you cannot be sure you will be in a position to pay (many businesses go though bad times after all) and (b) if it involves you selling your share of the business. The business is presumably your source of income or one source. There is no good reason why you should give that up at some arbitrary age so as to raise cash for your (ex) wife.
Re: Disclosure of future housing during Settlement Proposals
February 11, 2021 09:39PM
Thank you for your reply.
I will certainly reflect on matters now and certainly wont sign up to anything at this stage. Maybe let the Courts decide and hopefully they will be sympathetic to both our needs.

I actually brought up the subject of the house which her partner was buying and suggested that it should have been disclosed at the meeting. She advised me that her friend (an ex solicitor) had already advised her to disclose this to her own solicitor which she says she had done.
She replied that her partner was actually buying a holiday home and therefore she would not be moving in with him and therefore still needed to buy her home from the proceeds of the sale of our family home.
Of course I politely thanked her for the information and apologised for raising the subject.
(On the other hand she is not aware that I have seen plans for conversion work to the property on which the names of the client on the plans are that of my wife and her partner).

Personally I have no interest in what she does post divorce, but would I be correct in thinking that should matters go to Court, my legal team should raise questions of disclosure about her involvement with the property and perhaps request to see the plans of the Conversion work. It would no doubt be difficult to prove that she will be moving in, but should she do exactly that, it might help my case to reduce the maintenance in the future if it is revealed now?
Re: Disclosure of future housing during Settlement Proposals
February 12, 2021 10:17AM
>>she is not aware that I have seen plans for conversion work to the property on which the names of the client on the plans are that of my wife and her partner

You should discuss that with your lawyer because on the face of it those documents do not belong to you and the circumstances under which you became aware of them may be such that you would be unable to rely upon them as evidence because the information may have been wrongfully obtained.

This business about a 'holiday home' sound fanciful. Holiday homes tend to be in holiday destinations and of a type rather different from a permanent home. Also, if he is buying a 'holiday home' where does she say that he normally lives?
Re: Disclosure of future housing during Settlement Proposals
February 18, 2021 08:14PM
Thank you again Terry.
I agree, I suppose the fact that the conversion plans were left out on the office table in our home and I took a snap picture of them them as proof, is no doubt a bit sneaky of me and my solicitor will be reluctant to use that information.
One of the spare rooms is also full of boxes of brand new household items and kitchen appliances, no doubt pending a move to a new house.
Well of course she could be project managing a move to the holiday home on behalf of her partner, as he lives away, who know what she will say if I ask her?

Interesting that she is suddenly very very keen to get matters sorted and come to a settlement agreement prior to the First hearing in April. I am expecting an offer to arrive shortly.
My solicitor informs me that if a settlement is not reached we will both be required to update and re-submit Form Es by the middle of March.

I know my wife very well and I am 100% certain that she is keen to move swiftly with a settlement out of Court to avoid having to disclose the new property (her partners holiday home), which she is moving in to and may result in the Court taking a less favourable view of her housing needs, maintenance and necessity to retain the majority of the liquid assets.

Assuming we cant agree on a settlement, I am wondering if there is a way I can slow matters down a little after the First Hearing and to the next stage. It might work in my interest to do so. To be fair having spent a fortune so far in costs, I will have to re-group financially before going to Court, so slowing matters down will help me?

It mig
Re: Disclosure of future housing during Settlement Proposals
February 19, 2021 04:42PM
>>Interesting that she is suddenly very very keen to get matters sorted

Then it is in your interest to delay in order to put maximum pressure on her.
Re:Getting a second opinion
April 12, 2021 04:03PM
Dear Terry
My wife and I have reached a proposed Consent Order for financial settlement.
Despite the vast sums spent in obtaining Barrister's advice for the Outcome, this proved a waste of money and would have been better going to mediation by the Judge at First Hearing as previously suggested by you.
Anyway I can't change that.
The signing of the Consent Order has now been delayed by a further six weeks as the legal teams on both sides need to agree on the security on my shares in the family business which will be in place until such time I am able to pay my wife a lump sum at 65 (which can only be realistically be achieved by me selling my half share in the family business in five years time).
The basics of the Financials in the proposed Consent Order were actually agreed between my wife and I, having both hit a wall of frustration after the meeting between our respective Barristers.

Sometimes, I do feel that the legal side has shown more sympathy for my wife than I. I will be expected to pay substantial maintenance until I'm 65 and then a lump sum of at least £600k. My wife will keep our home and pay me a lump sum of £100k from her advanced inheritance from her mother ( to which I have made no claim) so that I will have something at least towards a mortgage.
Actually on paper I look better off, 60/40 of combined assets in my favour, but of course my assets will be my business and a few commercial properties which yield a rental income. But nothing liquid .All the risk is on me.

I do earn a substantilal income, but what strikes me is that my wife will never need to work again and I will be left with all the burden.I will probably need to continue working well beyond 65.

I have lost confidence in my own legal side. Can you recommend anyone to whom I may seek a second opinion to the Outcome of the Consent Order before it is agreed in six weeks time?
Re: Re:Getting a second opinion
April 13, 2021 11:09AM
You should be able to obtain a second opinion from another barrister. Obviously you would choose a barrister from a different set of chambers and if you choose a direct access barrister you should not have to go through another solicitor.

I would offer a word of caution though. It is that there is rarely one inevitable outcome in this type of legal proceedings. Opinions can and do differ. The question really is whether the outcome you seem to have agreed is within the range of reasonable outcomes. Just because one lawyer's opinion is at one point on that spectrum and another's is at a different point that does not mean that either can guarantee their point on the spectrum is where a court would land.
Re: Disclosure of future housing during Settlement Proposals
April 16, 2021 09:18PM
Dear David,
Thank you for your replies to date.

The FDR hearing has been postponed until August when it will become a Mention Hearing.
I suppose that is a rubber stamp exercise by the Judge.

On reflexion I am not happy with the Consent Order in light of your previous comments about the level of proposed maintenance which I will be required to pay over the next five years until I am 65.

Likewise your comment about my business and the large lump sum I will pay at 65 of £550k (which could increase to a maximum of £800k following a revised valuation of my business in five years time). I would have no alternative to sell the family business where my sister and niece are also shareholders.

All the risk is on me!

What I am disappointed by is that there has been no concession by the opposition to my wife's earning potential. I am not asking her to return to her former profession where she could earn around £25k per annum, but at least a part-time employment where she might earn £10 -£12k per year. Under the present proposal she will never have to work again.
If she worked that will reduce the level of maintenance I am expected to pay.
Okay she is 58 and has not worked for four years, but I am 60 and not exactly at the prime of my life!

Her housing needs have been catered for by keeping the family home which is excessive for her needs. She will be mortgage free. I will have to start again with a much smaller home and mortgage. I will be the only one working and all the burden on me.

Is it too late to have a change of heart on the Consent Order in view of the Mention Hearing in August.
I have a couple of months to review this and put in a revised Settlement Offer.
Having got this far I am very inclined to sack my solicitor and start again with a new legal team.

I know you are not aware of all the financial details, but fairness here appears to be non existent.
I think I would be more content for a Judge to decide than allow my solictor to quake under the pressure of his opposite number!!
Re: Disclosure of future housing during Settlement Proposals
April 19, 2021 11:09AM
It is impossible to tell whether there is a concluded agreement or not without seeing all the paperwork but if there is a concluded agreement it may not be so easy to resile from it and start again. At some point the hammer can fall in this type of negotiation.

There is another problem in that you say that you agreed this outcome. If you have changed your mind now your wife is entitled to ask what is to prevent you changing your mind about any agreement you reach.
Re: Disclosure of future housing during Settlement Proposals
April 19, 2021 04:25PM
There's no concluded Consent Order yet. Nothing signed or sealed.
You are quite correct in your view that my wife would query why I would change my mind to the proposed Outcome.

I do not feel that my solicitor has been very strong and has been a little out of his depth with some of the negotiations as he does not have a very clear understanding of Company Law and the limitations on me in that I am not a major shareholder. Some of the ideas I have instigated and thank goodness I did. There seems to be an assumption that when I am 65 I will simply be able to have access to a very large lump to pay my wife. What they have not grasped is that I cannot sell my shareholding in a long established family business without other parties in agreement.
And even if the other shareholders agreed to buy out my shareholding, a minority discount would apply as they would not be able to pay market value of the shares.

For that reason alone I am looking to seek a second opinion, even if it is just reassurance that the deal we have on the table is satisfactory.
Re: Disclosure of future housing during Settlement Proposals
April 19, 2021 07:11PM
>>There's no concluded Consent Order yet. Nothing signed or sealed.

It's not quite as simple as that. For example, if one solicitor writes to another saying, 'Our client proposes A,B and C in settlement' and the other solicitor replies, 'Your proposals A, B and C are accepted' then that is a concluded agreement which can usually be enforced.

It is true that enforcing such an agreement is a lot trickier than enforcing the terms of a properly drawn up consent order but such agreements can in principle be enforced if there is proper evidence of a concluded agreement. The fact that the case has been listed for mention tends to suggest that something has been written to the court about a possible agreement.

A separate point is that solicitors do not write letters which say, 'Our client proposes A, B and C' without being quite sure that the client agrees to such proposals being sent. What is a mystery is why you agreed to pay your wife a substantial lump sum when you reached the age of 65 if you knew that raising that lump was going to cause you problems.
Re: Disclosure of Property ownership during Settlement Proposals
June 14, 2021 10:21PM
Dear David,
The First Hearing was set for 1st April but postponed by my wife's solicitor, but a Mention Hearing will now take place on 2nd August.
The Consent Order has nearly been finalised and will be ready for the Hearing on 2nd August.

In February this year I heard about a house which my wife's boyfriend had purchased. I also heard a rumour from close acquaintances that he was placing the property in her name. I of course then questioned my wife about it and why it was not disclosed at our meeting with Barristers the previous month in January to try and reach an Outcome. She replied that her boyfriend purchased the house as a holiday home for himself. I had no reason to doubt her word and like her I was also keen to get the divorce matters resolved asap.

I have since read a Planning Application online for the house in which she is the applicant. A Certificate A had also been attached to the application which confirms she is the owner of the property.

My question - if the boyfriend purchased the house for her, should it have been disclosed at the time of negotiating the Consent Order and apportion of assets?

I was devastated to learn about her ownership of the house from the Planning application , having spent £20k on Barrister and Solicitors fees in trying to reach an Outcome, and on my part being completely transparent in revealing all my personal and business assets. What is hurtful is that I believe this non-disclosure has been untruthful on her part and I believe the Outcome may have been significantly different had the house been disclosed.

Of course it is possible that at the time we were negotiating the Consent Order, the property was not in her name, but transferred to her subsequently. Should this still have been disclosed?

I ma about to sign the most important document which will effect me personally over the
Re: Disclosure of Property ownership during Settlement Proposals
June 15, 2021 11:00AM
If she is the owner of the property it is easy enough to find out simply by obtaining office copies of the title from the Land Registry. If the Land Registry title confirms she is the owner you should refuse to progress the agreement which has been reached on the basis that your wife did not make full and frank disclosure.
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