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Clare
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 27661
Experience:  25 years experience of all aspects of family law
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Questions regarding financial settlements for divorce Present

Customer Question

Questions regarding financial settlements for divorce

Present situation:
My wife filed divorce petition against me on the ground of two-year separation, and I gave her my consent. I offered 50% of our matrimonial assets as the financial settlement, but my wife rejected on following grounds:

1) Because we married for a long time (19 years), and the “non-matrimonial” status of the assets in question is not entirely straightforward, it should be included in the settlement.
2) Because my wife is the one who lives with their son (17 year old), she should be rewarded higher percentage.
3) Because I did not make regular monthly maintenance payment from my salary during our 5-year separation period, my wife believes I owe her the past maintenance (regular contributions to the household was made in another form, see below “Profile of the family” section for details).

Questions:
1) If we let the court to decide, what is most likely outcome? I would like to have detailed advises particularly about how court might decide on my non- matrimonial assets.
2) What is likely cost of going to court?
3) What are alternatives?
4) What do you think is the best way forward?

Please provide answers to the above questions with as much details as possible. The followings are our personal information and family history, which I believe help you to provide sufficient legal advices. Please contact me if you need any more information.

Profile of the family
I, the husband was born in the April 1958 in Japan. I moved to London in 1984 and I am naturalized British citizen since 2007. My wife was born in March 1959 in Japan and Japanese citizen. She moved to London after marrying to me in Jan 1994 in Japan. Both wife and myself were divorcee and this was our second marriage. We have a son who was born in Feb 1996 (17 year old). Our son is being educated in a private school in London and expected to leave home for university in the September 2014.
My wife and myself used to run a small film production business as co-owners of their company from 1997 to 2006. While I was the one in charge of main operation of the company - sales and production - my wife was in charge of book keeping.
I started my PhD study in 2003 with intention to become a media scholar. My wife started teacher-training programs to become Japanese language teacher around the same time. Also, my wife was getting more and more involved with volunteer works (supervising and publishing English-Japanese translations) for anti-nuclear campaigns in Japan through internet the last ten years or so.
I was separated from my wife and son when I started teaching in a Japanese university in the April 2008. Before I left for Japan, we bought a large property in auction and started developing it as an income-producing house with a residential flat on the ground floor for us to live. Our intention was that the house would provide necessary incomes for wife and son for the time being, and provide pension incomes for both wife and myself in future.
I have spent 4-6 weeks with my wife and son in the house every summer, and my wife and son visited me in Tokyo for 2-3 weeks every winter the last 5 years. I need to continue spending part of year in the UK to conduct research even after the divorce, because my job in Japan requires me to keep up with what is going on in the UK academia.
I earns approx. 12,000,000 yen (80, 000 pounds at 1 pounds=150 yen exchange rate) gross per annual before tax and lives in a rented accommodation in Tokyo which cost me 3,000,000 (20,000 pounds) per annual. My wife published two books in Japan in recent year but her volunteer works produce almost nil income. Thus I sent monies every time my wife needed extras on top of the rental income (approx. 25,000 pounds per annual). I have been paying for our son’s private school fees, the costs of annual family holidays, wife and son’s airfares to visit Japan and etc.
I think both of us have been thinking of getting divorce for a long time. The bond between us was our son but we knew very well that he was leaving home the next year for university. Still, I was shocked when my wife presented a letter from her lawyer on the day I arrived from Japan two weeks ago (I took sabbatical leave from the Japanese university to stay in London till the mid September 2013). The ground for divorce is two-year separation but my wife told me she has photographic evidence of me committing adultery in Japan (which I admit as true), which she can use if I don’t consent. She appeared very determined to get divorce now rather than later, so I had no choice but to consent.

Matrimonial Assets
We own an extended semi detached house in Queens Rd Wimbledon SW19. The house is comprised of two parts – a residential ground floor flat and rental units on the first and second floor. The residential part is a large two bedroom flat of approx. 1300 Square feet with 150 feet back garden, a front garden with two parking space, and 350 square feet
Submitted: 1 year ago.
Category: UK Family Law
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question.
I shall do my best to assist you but I need some further information first
What is the extent of the assets in both sole and joint names?
Claire
Customer: replied 1 year ago.

Thank you for your response.


Please see below:


 


 



Matrimonial Assets


We own an extended semi detached house in Queens Rd Wimbledon SW19. The house is comprised of two parts – a residential ground floor flat and rental units on the first and second floor. The residential part is a large two bedroom flat of approx. 1300 Square feet with 150 feet back garden, a front garden with two parking space, and 350 square feet garden house. The rental part is comprised of 5 bed sitting room units. My wife has been managing these rental units.


The house was purchased for 565,000 pounds at auction in 2007. Approx. 200,000 pound was spent for renovation and extension. Current value of the house as whole is probably 1.3 – 1.5 million and the rental part have been producing approx. 25,000 pounds per annual. There is no mortgage secured on the house.



Non-Matrimonial Assets


I own non-matrimonial assets which derive from a property in Arundel Gardens - a one-bed room flat in the prime Notting Hill location. I bought this flat with money from his parents before I was married to my wife.


Currently I have 920, 000 pounds cash in in my offshore bank account, and have an investment property in Hawaii that I have just purchased in Jan 2013 for US 370, 000 dollar (with 220,000 pounds sent from his off shore account and 2,000,000 yen from my Japanese bank). Altogether, I have 1.14 million pounds non-matrimonial assets which derive from the Arundel Gardens flat. I also have approx. 3,000,000 yen saving (20, 000 pounds) which derives from my earning in Japan after the separation.


The wife has 8000,000 yen saving in Japan, which derives from her father’s inheritance, and I believe she has no non-matrimonial assets in the UK.


When I was married to my wife in 1994, we lived in the Arundel Gardens flat first. In 1997, we bought another one bedroom flat in Elgin Crescent – only one block away from the Arundel Gardens in Notting Hill. Then we have lived in and worked from these two flats for a while.


The Elgin Crescent flat and Arundel Gardens flat had more or less the same floor space – approx. 600 square feet – and both of them were in the prime Notting Hill location with communal gardens. The Elgin Crescent flat had a balcony in the back and higher ceiling thus it would command slightly more money (perhaps 10 % or so) than the Arundel Gardens, had we decided to sell both flats at the same time.


As our son getting older, this arrangement to live in the two one-bedroom flats soon became not very convenient. Thus we decided to sell one of the flats to buy a bigger family house. We decided to sell the Arundel Gardens and my wife agreed to treat the Elgin Crescent as my non-matrimonial property (no signed contract). We sold the Arundel Gardens for 295,000 pounds in 2001, and put the money in an offshore bank account under my wife’s name.


However, the search for our family house took a very long time. We could not make up our mind because there was uncertainty over how and where we wanted to educate our son. Thus we lived in a rented muse house in Wandworth, near the make shift Rudolf Steiner school, in which our son was attending for the time being (from 2003 – 2007), and rented out the Elgin Crescent flat.


Eventually, we decided to buy a house in Queens Rd Wimbledon because our son was accepted to a private school with good academic reputations in the area, and as a consequence, my wife decided not to move back to Japan with me. The house was bought with the money from the Arundel Gardens flat (approx. 350,000 pounds with accumulated interests) and a mortgage secured on the Elgin Crescent flat.


Our marriage was very shaky by this stage, but I thought the separation might not be a bad idea for us. I wanted to stay as a family at least till our son leave home for university.


Around the same time, a multi-millionaire next-door neighbor in Notting Hill made a fantastic offer to buy the Elgin Crescent flat. He eventually paid 1 million pounds (the market value of the flat was 600- 650, 000 pounds at that time. Why he wanted this flat so badly is another story) in Jan 2008.


When I sold the Elgin Crescent I needed my wife’s consent wife because her matrimonial home right was still registered. She agreed to the sale and re-confirmed that the flat was my non-matrimonial asset, thus I put the whole amount into my bank account. At the same time, however, she made me promise I wouldn’t be mean with the money. My wife made me write “I won’t be mean with monies” on a piece of paper and sign. I believe she still keeps this paper.


As far as I am concerned I believe I kept my end of the promise. I paid off the mortgage for the Queens Rd house, built a large extension and renovated a run-down house to make it a confortable home with income producing capacity. I paid for all the fixtures and furniture my wife wanted and paid for our son’s private education in England and etc.


Sadly, however, now my wife argues that that was not good enough. She even says that she only agreed to recognize the non-matrimonial status of the money because I would have gone bizarre otherwise and she didn’t want to have arguments.



Pensions


My wife and I, each of us have Stake-Holder Pension which we have been paying in 3,600 pounds per annually over ten years. The current value of my pension pot is 97,000 pounds, with estimated pension of 3,000 pounds per year in today’s money if I retire on April 2018. My wife’s pension is a little smaller because she paid less in the earlier years. We also have been paying into Japanese national scheme and it will pay approx. 50,000 yen (330 pounds) per month when we reach 65 years old. I have joined my university’s pension top up scheme 5 years ago, but I don’t expect the pay out to be very much probably around extra 40,000 yen (230 ponds) per month from the age of 65. Thus the rental income from the Queens Rd house was the main body of our pension plan.



Maintenance for our son


Already, my wife and I have provided 30,000 pounds fund for our son’s university education. The fund is under his name and it was originally gifts from grand parents. And I am happy to support my son’s education whenever he needs extra financial help.

Expert:  Clare replied 1 year ago.
Hi
For clarity are you saying that the flat was purchased with monies that you Inherited?
Could you also please give me an overall uk pounds figure for all the assets held in joint or sole names
Claire
Customer: replied 1 year ago.

The Arundel Garden flat was purchased with money given by my mother plus a mortgage. The purchase price of the flat was 75,000 pounds, and 45,000 pounds was gift from my mother and 30,000 pounds was mortgage.


 


Over all assets are:


The Queens Rd house= Approx 1.4 million pounds.


My offshore cash = 920,000 pounds.


Condo in Hawaii = 220,000 pounds.


My cash in Japan = 20,000 pounds.


My Isa etc = 30,000 pounds


My pension =97,000 pounds


My wife's pension= 85,000 pounds


 

Expert:  Clare replied 1 year ago.
Hi
And what offer have you made?
Claire
Customer: replied 1 year ago.

50% share of the Queens Rd house, with her right to keep living in the house and take incomes from the house, just as the way she was living the last five years for the time being till she establish her new life.

Expert:  Clare replied 1 year ago.
Hi
I am sorry but based on what you have said to me there is no basis on which your other savings will be regarded as Non Matrimonial Assets.
The Arundel Flat was at one point the Matrimonial Home and as such became a Matrimonial asset - and none of the agreements made thereafter are binding
Given the length of the marriage the starting point for division of the assets is 50/50 and I think it is unlikely that the court will stray far from this - although you may be able to persuade the court that you should have a larger share to reflect the original gift - but it is far from certain I am afraid.
The fact that your son is 17 means that his needs are no longer of any great relevance - and she cannot make a claim for "back maintenance"
The costs of a full fought court application is likely to be between £5,000 and £15,000 - possibly more depending on the solicitor that you choose
Alternatively you can try and negotiate with your ex using Family mediation (www.familymediationhelpline.co.uk)
I hope that this is of assistance (however disappointing) but please ask of you need further clarification
Claire
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 27661
Experience: 25 years experience of all aspects of family law
Clare and 3 other UK Family Law Specialists are ready to help you
Customer: replied 1 year ago.
My wife told me that she want the whole house- both residential and renting part. . I like to divide the house and let her have only the residential part ( the ground floor) and I take the renting part (1 st and second floor). The residential part of the house bears more value than the renting part (probably residential part 60: renting part 40 ).

If she keep insisting on having the whole house and we went to the court, what do you think the judge decide?
She does not have monies to buy me out , and our the value of our house conprise about 55-60 % of our entire financial pot.
Expert:  Clare replied 1 year ago.
Hi
For clarity are these in fact tow separate premises which have different Title numbers at the Land Registry and which are rated separately by the council?
Claire
Customer: replied 1 year ago.

They are not, at the moment.


But I am certain that it is possible to creates new leases and register them as two separate flats.


 

Expert:  Clare replied 1 year ago.
Hi
If they are not already two separate properties then it is highly unlikely that the court would separate them in this way.
Given the figures that you have outlined the most likely outcome is that she will get that property in full and final settlement of any further claims on you.
Alternatively the court could order the sale of the property and allocate at least £1 million to your ex - but that could leave you liable for ongoing spouse maintenance
This is of course only a rough guide based on the limited information that you have given
Claire
Customer: replied 1 year ago.

You don't think the court will take the fact that I made much bigger contribution to our assets at all?


 


Why do you think the court allocate at least least 1 million to my wife (we own the house 50/50) plus maintenance?


 


Any idea what the level and length of the maintenance likely to be?

Expert:  Clare replied 1 year ago.
Hi
The marriage is a long one and all the assets are matrimonial assets so no I am afraid the fact that your former matrimonial home was originally yours will not be relevant.
There is a substantial difference in your incomes which means your ex has a claim for spouse maintenance
The total assets are in the region of £2,600,000 and one million is the
least that she will get
Claire
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 27661
Experience: 25 years experience of all aspects of family law
Clare and 3 other UK Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Any idea about the level and the length of maintenance likely to be?


My income is approx 55-60,000 pounds (in Japanese yen), and if the house is sold, she has no income.


 


Also, if she choose to divorce on the ground of adultly rather than two year separation will it make any difference to financial settlement?

Expert:  Clare replied 1 year ago.
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Customer: replied 1 year ago.

I know it is difficult to assess what the maintenance will be, but what basis the court decide the level and length of maintenance?


It is "need" basis?


If so how the court define my ex's "need"?


 


Also, if I am paying in lump sum, how the court calculate the lump sum?

Expert:  Clare replied 1 year ago.
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