Hi all,
I got divorced from my wife 2 years ago. Both in our late thirties, no children. Bought property at end stage of out marrage, two years before divorce (with mortgage) registered as joint ownership. Divorced complete, but no financial settlement agreed (via courts) and I (petitioned) did not tick the "financial claim" box during divorce proceedings.
I am getting remarried next week, so suddenly I realized (after being alerted by a friend) that in absence of a financial settlement, we are both still open to claims.
Before going into the marriage trap, this is what my ex and I formally agreed: our only real asset is the shared home in our joint names (she has control over a property without mortgage overseas as well, but it is in her mum's name, so doubt that comes into play, although it basically gives her a place to live and/or very good rental income). Anyway, we decided that we keep the property as two individuals (i.e. retain the joint ownership) - as if we had purchased the property as two friends (knowing full well the potential pitfalls). This way we could keep it as an investment, sell later if needed, buy each other out over time, etc. Right now I am living there, and I pay her market rent (well, half of it, as we do everything 50/50, including paying the mortgage). We might change the tenancy from joint to tenants in common (more suitable for friends), but as far as we saw it there was no immediate rush (both forms of ownership have their pitfalls).
(1) So my first question is, if we both agree to leave property ownership details untouched (i.e. jointed ownership as two individuals/friends, rather than a married couple) could that be agreed as part of a
Consent Order? We can then deal with property matters under normal property law later. We just want everything as it is now, but with a
Clean Break (no future claims, at least not under marriage laws). Is that possible / straightforward?
(2) Sadly (in terms of timing only) I am getting married next week. So panic of course sets in having now read about the marriage trap. Some websites imply (but don't clearly give details) that consent orders cannot be submitted after I have remarried (but even if that's the case, can she?). However, Section 28(c) of the Matrimonial Causes Act 1973 actually states:
If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage.
and also Section 21(1) states:
The financial provision orders for the purposes of this Act are the orders for periodical or lump sum provision available (subject to the provisions of this Act) under section 23 below for the purpose of adjusting the financial position of the parties to a marriage and any children of the family (etc...)
So it appears to me that only an application for a lump sum, periodical sum or property adjustment is not possible after remarriage, is that correct? But assuming that what my ex and I have informally agreed on is possible (see point 1 above; i.e. retain property in joint names as individuals), would this count as a property adjustment, as there is no transfer or other change in ownership rights (under property law)? All we want is for the property ownership to remain the same (as it is now), but with us as individuals and without the possibility to make future claims under family law (i.e. clean break under family law).
Thoughts welcome, as I am panicking a bit now.
