Legal Separation worry

rainydays

A friend of mine has a legal seperation agreement and in it her ex husband has a 40 per cent interest in the family home. She lives there with her children and he is living somewhere else. She knows that she can stay there until her children are out of full time education, and that he will then be entitled to his share. This has been hanging over her like a black cloud because originally she thought that she would be able to save and by that time have enough to buy herself a smaller house, but now finances are bad and she is worried that she is not going to able to afford it. She can't afford to buy out his share either. Her youngest child is 16 now.
He is doing everything he should be doing regarding paying maintenance and abiding by the legal agreement.
What will happen when her children are adults, can he force her out of the house?
I would like to be able to reassure her, but I suspect that the house will have to sold eventually, am I right?

Peregrinus

From what you say, it was contemplated by both of them from the outset that the house would be sold when the kids were raised, and presumably the broader financial settlement reflected the fact that he would have to house himself in the meantime, while she would have the use of the family home for a number of years before having to rehouse herself.

She agreed to this in the expectation that, between her 60% share in the proceeds of the family home and what she could save in the meantime, she would be able to rehouse herself when the time came.

It’s now apparent that this expectation is not going to be borne out; no doubt economic circumstances in the past few years have something to do with this.

If they’re married but separated, she can always go back to court and apply to have the financial settlement varied. But if it was intended to be a long-term settlement at the time, this won’t be easy. And two factors will tell against her:

First, if they’re separated and have made a financial settlement, it’s not really her husband’s job to insulate her thereafter from changes in economic circumstances. The mere fact that this is not panning out the way she had hoped is not, in itself, a reason for setting the settlement aside.

Secondly, if the settlement is reopened, changes in his financial circumstances as well as hers will be relevant, and presumably they have both been adversely affected by the economic downturn. So a readjustment is not necessarily going to favour her, or at any rate not necessarily by enough to enable her to buy the house, or another house.

The starting position is that she has already, in effect, agreed to the sale of the house. If she wants to change that, the first and most promising avenue to explore is to talk directly to her husband - through advisers if necessary, but without going to court. The easiest way to change an agreement is to replace it with a new agreement; it’s much easier than trying to get the court to do it. Obviously I’ve no idea what relationships are like between her and her husband or what kind of a bloke he is (beyond the fact that he has honoured the existing agreement) but this is definitely the first avenue she should consider.

rainydays

Peregrinus wrote: »

From what you say, it was contemplated by both of them from the outset that the house would be sold when the kids were raised, and presumably the broader financial settlement reflected the fact that he would have to house himself in the meantime, while she would have the use of the family home for a number of years before having to rehouse herself.

She agreed to this in the expectation that, between her 60% share in the proceeds of the family home and what she could save in the meantime, she would be able to rehouse herself when the time came.

It’s now apparent that this expectation is not going to be borne out; no doubt economic circumstances in the past few years have something to do with this.

If they’re married but separated, she can always go back to court and apply to have the financial settlement varied. But if it was intended to be a long-term settlement at the time, this won’t be easy. And two factors will tell against her:

First, if they’re separated and have made a financial settlement, it’s not really her husband’s job to insulate her thereafter from changes in economic circumstances. The mere fact that this is not panning out the way she had hoped is not, in itself, a reason for setting the settlement aside.

Secondly, if the settlement is reopened, changes in his financial circumstances as well as hers will be relevant, and presumably they have both been adversely affected by the economic downturn. So a readjustment is not necessarily going to favour her, or at any rate not necessarily by enough to enable her to buy the house, or another house.

The starting position is that she has already, in effect, agreed to the sale of the house. If she wants to change that, the first and most promising avenue to explore is to talk directly to her husband - through advisers if necessary, but without going to court. The easiest way to change an agreement is to replace it with a new agreement; it’s much easier than trying to get the court to do it. Obviously I’ve no idea what relationships are like between her and her husband or what kind of a bloke he is (beyond the fact that he has honoured the existing agreement) but this is definitely the first avenue she should consider.

thanks so much for your reply. Yes I thought it would be as you say. Actually it was not the original plan that this would be the long term arrangement but sale of the house fell through as the property market went bust and now they just let things lie as they are. He seems happy enough to leave things as they are now probably because he sees it as a future investment and he would not get as much if it was sold now.
Also he does not have to pay rent or mortgage as his present partner is sole owner of the house he lives in. Does that make any difference?
Thanks again

Peregrinus

rainydays wrote: »

Also he does not have to pay rent or mortgage as his present partner is sole owner of the house he lives in. Does that make any difference?

It could since the circumstances of both spouses are always to be taken into account in financial and property orders. But I wouldn't be wildly optimistic. Courts can always do this, but they don't do it lightly.

The bottom line is that the interests in the family home were divided back when the separation was first ruled in court. The couple decided not to proceed with an early sale, leaving open the possiblity that the interests could be divided again later on, if the circumstances of one of them changed.

But I think the change would have to be fairly radical and profound before the courts would reopen this. "I haven't been able to save as much as I had hoped" doesn't really cut it. Plus, if the original plan was for an early sale, clearly the expectation of a sustained period of saving before the wife would have to rehouse herself wasn't something the spouses relied upon in agreeding to the original decision.