I am still without a home – what is legal position under Matrimonial Causes Act 1973?

It’s been almost 2 years since I was forced to leave my home. The judge envisaged that I would be able to provide my children with a home and that my ex would be able to provide my children with a home, after all we have a Shared Residency situation.

For those of you who don’t know, a Shared Residency Order under the Children’s Act, is one where the children legally have a home with both their parents ie one with their mum and another one with their dad. They are not in a situation where one parent has sole residency and the other has contact rights, which has historically been the case with the majority of divorcing couples. (Typically the mum has had sole residency with the father having contact rights).

(I appreciate that many of you who read this article are in a worse financial position than I am in. I appreciate that many people both here in England and abroad live in similar circumstances and much, much worse. I am very fortunate to have a brother and his wife, who are kind enough and who have a spare bedroom, to put me up for this length of time. At least I’m not having to live in a refuge, or in a shelter……).

Please bear in mind that the reason I am writing this article is to illustrate the inequity in our particular financial circumstances. It is the inequity that I wish to highlight. I also wish to set out for you the legislation and to show how it is being applied to my case as an example).

In fact, the relevant principles are set out in Section 25 of the Matrimonial Causes Act 1973 which, essentially, reads:-

“25 (1) It shall be the duty of the court in deciding whether to exercise its powers …. to have regard to all the circumstances of the case including the following matters, that is to say –

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(g) …the value to either of the parties to the marriage of any benefit (for example, a pension) which … (by reason of the divorce) ..that party will lose the chance of acquiring;…”

So, now we know the legal position, I will illustrate each of the points the Judge in the finance proceedings (known as Ancillary Relief proceedings) should have covered in his analysis and judgement of the facts of our particular case. (Note: the finance proceedings are a seperate set of proceedings to the Children’s Act proceedings.The Judge in the Children’s Act proceedings does not look into the finances of the couple but merely the residency issues of the children. The Judge in the finance proceedings only looks at the financial aspects of how the children and the divorcing couple are to be housed and maintained).

Taking each point in s25, I will set out the facts in our case:

>(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

Income:
My ex earns £450,000 per annum; I used to earn well as a City solicitor but gave it up to look after our children. Although I am self employed and starting to gradually work again, I earn very little. There is a huge disparity of income between us.

Earning capacity:
My ex will continue to earn this until his law firm decide not to continue to want his services. He is an equity partner and therefore a joint owner of the business so he can’t technically be “sacked” but he can be “eased out” by the other partners. He is in his late 40s so could still get other employment once he has to leave his current firm.

My earning capacity hinges on 2 factors:
1. I have Bipolar. Not only does this result in huge discrimination by employers (80% of the unemployed have mental health problems despite the fact that 90% of them want to be employed (government statistics), but working whilst managing my Bipolar is a challenge in terms of what job I could hold down succesfully.

2. I am now in my early 40s and have not been employed for 10 years. Although I am a solicitor, I am out of date with the law that I used to practise and so am re-educating myself with the current legislation. Clearly, it will take time to get myself fully back into the market, if indeed I can. I am also a woman and women still only make up 25% of partners in law firms, despite the fact that 60% of all lawyers qualifying are women. Women are still paid less than men for the same work, even trainee lawyers coming out of college are paid more. (Law Society statistics).

The Judge has therefore decided that I can be expected to earn around £18,000 per annum. The reality is that I am earning around £4000 per annum currently.
Financial needs:

We both have the need to finance our children: clothes, food, health care for them. My ex has a more onerous need in that he pays for their private education which is expensive. That is part of why he has been awarded more of his income which is fair enough. Because he has the children during term time, he has also been awarded more due to financing the cost of a full-time live in nanny and a cleaner! (The irony is that if he allowed me to look after them, he wouldn’t need to pay for a nanny or a cleaner!).

Other than that, however, I do not accept that his financial needs for himself should be given priority over mine. He should have the same clothing, food and healthcare allowance as me. Yet, his personal allowance is far greater than mine. This has been justified by saying that he works hard and therefore should be allowed more. Yet this flies in the face of the concept (supposedly embraced by the law) of equality in contribution between a bread winner and a parent who contributes by raising the children and running the home (which I had done for 8 years prior to the divorce).

The Judge has decided that my husband should have a disposable income amounting to between 89% – 92% of his income, whilst I should have between 6% and 11%of his income for only 5 years. Thereafter, he gets to keep his entire income whilst I get nothing.

Why is this fair? Apparently, because he has awarded me 2/3 of the value of the capital of the house. This would have been fine, except that the value of the capital is now not even going to cover my debts.

Property:
We jointly own a house worth millions (it was originally valued at around £3.5 – £4 million but the last offer we had was £2.5 million due to the recession and it still hasn’t sold). It has been on the market for 18 months now. The mortgage is £2.1 million and the costs of the sale will amount to around 1.5% of the value) Once you split the remainder, I am left with around £200,000 out of which I have to pay my legal fees and other debts amounting to £450,000. I therefore have no capital with which to buy a house and will be left with circa £250,00 worth of debt. Given my income position, I will have to declare myself bankrupt as I cannot clear these debts.

As a direct contrast, I do not have a home of my own at all, I have been awarded 6-11% of his annual salary out of which I have to pay £1500 per month on debt repayments. I therefore cannot afford to even rent a home. For the past year, I have had to borrow my boyfriend’s 11 year old car to drive the 120 mile round trip to see the children.

I am living in my brother’s spare bedroom in which the children and I have to live during the 50% of their time with me in the holidays and other times (their time with me amounts to around 200+ days a year). We all have to share a bed even though the children are now 10, 8 and 7. Their clothes are in 2 sets of drawers and a cupboard. Their toys are in toy boxes stacked in our bedroom.

When I go up to see them after school, or in one of their matches or for any other time with them, I have to drive 120 miles round trip (around 4 hours in a car) and they and I have to hang out in the town or in a hotel or in a cafe in order to spend time together. I am often having to stay at friend’s houses during the week when I have multiple visits up there. Not only is it unfair on my friends to continue to put me up, but it is exhausting for both me and the children to not have a home to go to when I see them. Whilst they are with me, we all have to share a bed and our one room has to contain all our worldly things.

This is not a sustainable situation.

(d) the age of estrong>(c) the standard of living enjoyed by the family before the breakdown of the marriage;

This legislation states that, in awarding maintenance, the Judge should give consideration to the fact that each spouse had been used to a certain standard of living during the marriage and, if finances allow, this standard should be continuing: in other words, one party should not be placed in a position of severed financial contrast to the others. The children should not be expected to have to cope with living with a parent who is substantially poorer than the other one ie go from a luxurious home to a poor home. Yet this is exactly what has happened.

Prior to divorce, we led a luxurious lifestyle, travelling to several destinations a year, eating out, going to the theatre, holding many parties etc, etc. We were extremely fortunate.

Now, it is very different for me. I am constantly worrying about my food bill, I very rarely eat out, I have been on one holiday in almost 2 years (and that was because a friend lent me her holiday home). Yet for him, his luxurious lifestyle has barely been touched.

My husband continues to live in this house with a full time live in nanny, our 7 double bedroom, (4 with ensuites), 5 reception rooms, 1/2 acre of land, has a full time live in nanny (who even works on weekends), a cleaner, a brand new BMW X5, a new Golf for the nanny and still happily affords to live a luxurious lifestyle, regularly eating out at nice restaurants, travelling and being a member of 2 sports clubs.

Section 25 (d) the age of each party to the marriage and the duration of the marriage;

We are both in our 40s – he is 6 years older than me. The Judge therefore accepted that he may have less time to earn money than I do. However, the fact is that in his time left, he will earn vastly more than I do therefore this is a skewed concept. If he continues to earn £450,000 for say 5 years, he will have earnt £2.7 million. In contrast, the Judge claimed that I should be able to earn £18,000 pa. If I can work til the same age as my husband stops working, then I can be expected to earn for another 12 years at £18,000 pa. This amounts to £216,000. With my maintenance award (which only lasts for 4 years from April), I will have received £406,000 in the next 12 years ie £33,833 pa.

This is an outright unjust and extraordinarily inequitable situation that I am in. I simply cannot understand how the Judge has allowed this situation to happen.

Duration of the marriage

This is relevant because the longer the parties are married, the more likely it is that they have jointly built a life together and therefore it is going to be harder for each of them to maintain themselves on their own.

We were married for 10 years, together for 13 years. Apparently, this is considered to be a “medium” length marriage.

s 25 (e) any physical or mental disability of either of the parties to the marriage;

I have a mental disability ie Bipolar. He has no disability. This immediately puts me at a severe disadvantage in terms of my ability to earn a good level of income. His ability is unencumbered.

Section 25 (f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family

My husband’s contribution is clear ie he was the main breadwinner funding our home’s mortgage and bills and lifestyle. I worked throughout most of my marriage on a part-time basis and so earnt very little. I spent the majority of my time being pregnant, giving birth (3 children in 3 years) then looking after our son who has a severe physical disability (ie Type 1 diabetes) which he got age 2. This meant that I could not work full time as he needs 24/7 care.

I also spent a huge amount of time on building our house which was a £1.3 million project. We increased the size of our house from 4000 sq ft to 7000 sq ft.

I therefore consider my contribution to our family as equal in value to his.

(g) …the value to either of the parties to the marriage of any benefit (for example, a pension) which … (by reason of the divorce) ..that party will lose the chance of acquiring;…” </strong>

This is essentially a pension in our case. I have forfeited the chance of acquiring a pension as I have not been working full time during our marriage. My husband, in contrast, was able to put aside money for 2 pensions albeit that they are not substantial. He will continue to be able to provide for his pension, whereas my ability to do so will be extremely limited.

The Judgement and award:

The Judge heard all the arguments over a 5 day hearing. This is the award he came up with ie a maintenance award and a capital award:

1. Maintenance award:

I am to received 6.7% of his gross salary for 3 years and 11% for 2 years.

Out of this maintenance, I have to support the 3 children when they are with me as well as look after myself.

Typically, any spouse is awarded around 40% -50% of their ex’s income.

Capital:

Usually, the capital is split 50:50 depending on the needs of the children whose welfare is the court’s main concern. The main issue in any finance proceedings is that the children are to be provided with a home. This is why, historically, where the children have lived with their mum, the woman stays in the home and the husband has to move out and buy/rent another home for himself. This is not the legal situation we have: ours is a Shared Residency with both of us legally obliged to provide a home for the children.

We jointly own the home, but I have been awarded 2/3 of the value to ensure that I can provide a home for the children as I won’t be able to do this out of my income whereas my ex could provide a home out of his income position.

Conclusion:

The children and I am now in a position which is unsustainable and hugely inequitable. It is not fair on either them or I to be expected to live in a vastly inferior way to him and I am not going to tolerate it. I have tried to negotiate with him but he says it’s not his problem but mine. I have asked him to come to mediation but he refuses to do so. I have tolerated this for almost 2 years. I can no longer tolerate it and am not prepared to.

Unfortunately, more fireworks will ensue……