Barder event?

Hi, I really hope someone can help with this as I’m a LIP:

Financial settlement agreed at FDR and Consent Order approved but still to be received: H 48.5/W 51.5. 35/65 wife pension. 1 child. W to stay in FMH with 2 years To get H off the mortgage. 2nd property is empty and up for sale. H is self employed so was able to minimise income substantially for form E to £13k with £0 for next 12 months due to illness/lack of work (false). Bank statement expenditure shows otherwise. W income £38k. Settlement has taken over 2 years. H Had shared care about 20% and needs were for both H and W were 2 bed property. Since FDR W has 100% care of child due to a physical assault on child by H. Police and Child Services involved. Child did not want to press charges and no physical evidence as assault happened a few months ago and child covered for H when W queried injuries but later informed W of what happened. H has denied assault. No direct contact is now in place; child has now said does not want to see H and Children Services advise they’re old enough to make decision and they do not need to be involved as W keeping child safe. Would this constitute a barder event? H would not need 2 bed property as no longer having shared care.
Another element is that 2nd property was overvalued for FDR (Estate Agent valuation for sale) and in matter of months is proving to be worth significantly less. W also thinks FMH is overvalued but had surveyor report so had to agree. This will put W in impossible position to pay full 48.5% of marital pot as agreed.

W was keen to get settlement at FDR as H is abusive and been in this legal battle for 2 years but would not have agreed to split had she been aware of physical assault on child and subsequently having 100% care and related costs. H has also now reduced maintenance. W would also not have agreed to the split had the correct valuation of the 2nd property been made.
W is LIP; H has solicitor/barrister despite not having any income!!!

Would very much appreciate some help with this. Thanks

Your post is confusing so I’m not exactly sure what your question is.

The value of an individual asset won’t matter if the pot is being divided by percentages. If one of the houses is worth less than expected then it will mean that the amount that has to be paid to will be lower.

Thanks for your reply. Sorry I didn’t explain myself well. The 2nd property is supposed to be sold with H receiving his % from sale plus a capital amount to go to W along with the equity in the FMH. However, it seems now 2nd property value was significantly less than that agreed in FDR (in a matter of months) so to pay H his % the W would have to pay him £25k from the equity in the FMH. She doesn’t have funds or access to funds to do that so wouldn’t have agreed to the settlement had the accurate valuation been made. The main aim of the W was to remain in FMH and take over the mortgage to provide stable home for child.
The other factor is that subsequent to FDR, W now has 100% sole care of child due to physical assault on child by H. The marital pot of £300k assets was divided on a needs basis but with the size of the pot significantly reducing to £225k, possibly less, and now the H not having a requirement for a 2 bed property as no contact with child, is there anything the W can do to change/vary the consent order or is it just a case of having to lump it and sell the FMH to pay the H his share? FYI W has 2 years from FDR to take over the mortgage or sell.

There is a high bar to establish a Barder event.

The difficulties I see here are: the valuations were informal, the matter was settled by consent rather than by trial, the economy has changed which is normal even if significant.

There are also different ways of drafting an order to ensure that the goals are achieved. For instance if the wife needed a minimum amount from a property sale it could be that she receive that amount plus a percentage of any overage with the remainder to go to husband.

It's still not clear from the above posts why there would be an amount to be paid to the husband by the wife. If the husband is to receive a percentage from the 2nd property sale, that percentage would come from the sale proceeds.

The last post says " plus a capital amount to go to W" which I assume means that the balance of the sale proceeds should go to the wife. It's unclear why the wife would need to pay any money at all let alone £25k.

Charles

Hi Charles I’ll try again! The pot was made up of equity of £142k in the FMH and proceeds of sale of 2nd property of £158k. Total £300k. Agreed H 48.5/W 51.5 with W retaining equity of FMH and to receive £13k from proceeds of sale of 2nd property and H to get the balance of £145k. W to take over mortgage in sole name within 2 years or sell.

Now due to huge drop in sale price of 2nd property, proceeds of sale of 2nd property will significantly reduce the pot by £75k (25%) to £225k (just 4 months after FDR) and possibly even less (having spoken to Estate Agent today). To achieve 48.5/51.5 split, it would mean £109k to H and £116k to W. The equity retained in FMH is £142k so W would have to pay balancing payment of £26k to H but she is not in a position to increase the mortgage by this much to do this nor does she have access to funds to make this balancing payment (which is due on transfer of FMH to W sole name or sale of FMH).

So what am I to do? I now have 100% care of child (contact was shared H20/W80 at FDR). Had I known my ex has assaulted our child and would no longer have contact and that the informal valuation of 2nd property was so out at FDR, i wouldn’t have agreed to the % split. Hence why I’m asking if could be considered a Barder event?

Or is there another route I can take? Permission to apply to vary term of 2 years has been stated in order - how likely are court to agree to extend this term if I’m unable to get mortgage for enough funds to takeover mortgage and pay balancing payment? If I’m forced to sell FMH it could mean me and my child having to rent whilst my ex is able to buy a property to live in which seems so unfair (as an added issue, I’ve been left with poor credit history from financial abuse which means it will take me 18-24 months to rectify to get a mortgage - which is why we agreed 2 years to take over mortgage in sole name).

Also, sale price of 2nd property is agreed on the order with a lower price to be agreed by both parties and Court if not agreed. Is there any scope for me to agree to this much lower figure to achieve quick sale with 48.5/51.5 split being renegotiated by consent?

Or is there anything else at all that you could suggest I can do to stay in FMH?

I had factored in that 2nd property could sell for less when agreeing to the settlement but just not by this huge amount. This nightmare just goes on and on. I guess what I really need to know is that I should just accept that FMH will have to be sold and there is nothing I can do about it?

Your advice is much appreciated. Thank you.

What does the order actually say?? If you are to get 100% of the equity in the FMH, that is what you will get.

If you were to get a specified amount from the sale of the second property with him getting the residue, that is what will happen. If it is expressed as a percentage, the precise amounts will vary with the market.

If the sale price is agreed, the property will have to be marketed at that price for a period. If it doesn't sell you can either agree a lower marketing price or, if you cannot agree, ask the court to determine the price.

The precise wording of the order is very important.

Hadenoughnow