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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.

 

Obtaining a FInancial Order if spouse is missing.

  • Sam634
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17 Aug 24 #523761 by Sam634
Topic started by Sam634
Hi all,
I have an issue whereby it has proven impossible to trace my missing wife.
We have been seperated for over 30 years, having been married for 20 months, no prior co-habitation, no children.
We had a house which was in joint names with a joint mortgage, which could not be sold, remortgaged etc because it was in joint names and because my spouse was missing could not sign anything etc. Despite me paying for the mortgage for the whole term, it was agreed by myself and the mortgage company, that the house would be sold by auction, after effectively being repossesed. It was the only action that could be taken as I had no way of redeeming the joint arrangement. After paying the small outstanding mortgage from the auction proceeds, there is a lump sum of approx £130k, which is now being held by the court, since 2023, pending the resolution of the divorce.
I also paid the deposit, stamp duty etc to purchase the house in the first place.

I have since purchased a new house in my sole name in 2014, with a £14k mortgage outstanding in my sole name, in which I live.

As part of our seperation we did obtain a seperation agreement, from a solicitor (signed, witnessed etc) in 1994 that actually detailed the financial arrangements that we would seperate with. I paid the agreed funds and transferred assets to her, although the marital home, having no equity at that time, was agreed to be transferred to me solely. This did not happen and she has not been tracable since.

I have been through the entire process to obtain a "deemed service certificate", from start of Aug 2024 and have applied for the Conditional Order straight after. It has taken 24 months to get to this point. All attempts have failed to trace her, including the Court ordered use of Government resources (DWP etc).

I have now retired and have an annual pension income of around £30k.

I cannot find any examples of what needs to happen to obtain the necessary Financial Order to release the lump sum fund from the Court and provide some form of "Clean Break", when a spouse has been shown to be missing for so long after a very short marriage, and every attempt has been made to find her, to enable the divorce application.
Obviously this will need to be some form of "contested" FInancial Order and the mediation stage cannot be undertaken.
Similarly the "form E" will be available from me, not from my missing spouse and there is no way to contact her, as previoulsy shown, for any Court ordered action.
I can also provide the Court with the certified "seperation agreement" previously mentioned.

Any experiences or direction for this type of scenario would be gratefully received.

This has taken decades to try to resolve and is an absolute millstone!
Thank you in advance for any insight.

  • WYSPECIAL
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18 Aug 24 #523766 by WYSPECIAL
Reply from WYSPECIAL
Have you checked to see if there is any record that she has died?
Is it possible to get her declared dead?

  • Sam634
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19 Aug 24 #523778 by Sam634
Reply from Sam634
Thank you for your suggestion.
The online records have been checked between 1995 to date and nothing has been registered for death.
I am sure it would be feasible to have her declared dead, although I have come so far down the divorce route, it would seem a, hopefully, unecessary additional route.
It obviously depends on how the Court would treat my Financial Order application. I am hoping that they would uphold the previous seperation agreement, made in 1994. The issue will be if they also recognise the previous efforts made during the Divorce Application to show she is uncontactable and won't engage, despite all previous efforts.
I just can't find any precident, although I am sure it has happened before, especially given that many Divorce Applications are required to obtain deemed service certificates, apparently?

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20 Aug 24 #523782 by Sam634
Reply from Sam634
After a bit more digging, the Gov website says that the "presumed dead" approach won't actually resolve the financial order issue - "You can use the presumption of death petition to remarry or form a new civil partnership, but not to get a death certificate, financial order (‘ancillary relief’) or apply for probate."

I will start to submit a Form A.
It looks like the form has recently changed so that the Mediation part needs to be completed. It previously had an exemption which basically said if you don't have conatct details for the respondent then you are exempt from MIAM.
I have booked my session (one sided...)

I will also use the last known address of my wife, that was obtained for the Divorce Application via a tracing agency. There was previously no response from here, however that's all I have to start the process.

Any further advice, greatly appreciated!

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