Your Letters
Ask Lisa-Marie
Lisa-Marie Darby is a Solicitor at Wright Hassall Solicitors LLP in Leamington Spa, one of the leading firms in the West Midlands. Lisa-Marie qualified as a solicitor in 2003 at a firm in Leicester and has been a member of the Wright Hassall Family Law Team since 2007. Lisa-Marie is a member of Resolution and deals with all areas of relationship breakdown including divorce, ancillary relief matters (finances), cohabitation issues and disputes involving children, in which she has a particular interest.
Christmas is traditionally considered to be a time for families to be together and therefore it is understandable that it can be heartbreaking for those who are in the midst of divorce or separation, particularly the children who should be enjoying this magical time of the year.
Lisa-Marie Darby offers some suggestions to help you to have a harmonious festive season:
- Do plan arrangements as early as you can when it comes to Christmas contact with your children. If you leave everything to the last minute, it will make negotiations between you more pressured and an urgent application to the Court far more likely.
- Do not ask your children to decide where they would prefer to spend their Christmas holidays. You may well think that this is the fairest way, but it places your children in the difficult position of effectively having to choose which of their parents they most value. This is unfair on them and may cause them great distress. It is the responsibility of the adults to make these decisions, even when it is hard to do so.
- Do consider the long term rather than just focusing on this Christmas. Both of you will want your children to be with you on the first Christmas Day after separation, but there will be many others in the future and the fairest approach is often to alternate from one year to the next or even to share Christmas Day if you do not live too far apart.
- Do ensure that handover times for contact are pre-arranged and make sure that you abide by them in an effort to avoid any last minute arguments. Agree between the two of you in advance who should be responsible for drop-off and collection, so that there is no confusion as to which of you can have a glass of egg nog on Christmas Day.
- Do not enter into competition with your former spouse or partner when buying gifts for your children. If matters have remained fairly amicable, you may successfully maintain the tradition of giving joint Christmas presents, but where that is not the case, a certain amount of discussion will at the very least ensure that there is no duplication when presents are ripped open around the tree.
- Do use extra Christmas contact time for visiting extended family. When couples break-up, their children can often miss out on close relationships that they previously enjoyed with grandparents, aunts, uncles and cousins in the normal routine of contact arrangements. Christmas is the perfect time to rekindle these valuable relationships. It is important for children to understand that their place in the family as a whole is secure at a time when they are likely to be experiencing significant upheaval and disruption in their lives.
- Do not make decisions that are important and potentially life changing in the heat of the moment. As we all know, Christmas is a stressful time of year so try not to rush into anything after being trapped in the house with relatives for too long or having enjoyed a little too much festive cheer.
- Do try your best to relax and enjoy the time you have with the children, even if you are still missing your former spouse or partner. Couples often find it difficult when they try to recreate the Christmases they enjoyed when they were together so it may be preferable to embrace the change and enjoy celebrating in a different way. Your children may even welcome the change – who wouldn’t like to celebrate Christmas twice every year?
Above all, do be prepared to compromise. Divorce and separation regularly cause otherwise sensible and reasonable people to lose perspective and if you feel that this is happening, consult your matrimonial solicitor who will be able to discuss issues with you and then put forward your position in a more calm and objective manner. They should impress upon you the importance of being flexible and appreciating the other person’s point of view which should then go a long way towards you and most importantly, your children, simply having a happy Christmastime.
Editor's note: You may find our divorce social worker's article on shared living arrangements thought-provoking.
We thank Lisa-Marie for all her work in answering your letters.
I am from an extremely wealthy family who have expressed concern at my choice of partner as he has no money and does not work. We are due to marry next year and it has been suggested that I should encourage him to sign a pre-nuptial agreement. Do you think that it is worthwhile?
I imagine you are concerned because you have heard that pre-nuptial agreements are not binding under English law. This is true but it is also the case that they are one of the factors that the court should consider when assessing the financial entitlement of each party on divorce and that recently, the courts have moved towards paying their terms far more attention.
In fact, in the recent case of Radmacher v Granatino, the Court of Appeal confirmed that it is becoming "increasingly unrealistic" for Courts to disregard pre-nuptial agreements. Given the increasing significance of pre-nups, it is certainly worth careful consideration by you. Please be aware however that for the agreement to hold any weight, it is vital that you both obtain independent legal advice, that you exchange full financial disclosure and that you both enter the agreement freely and without pressure from the other party.
I suggest that you seek advice from an experienced matrimonial solicitor in respect of the same as far in advance of the wedding as possible.
My husband left me 2 years ago and his solicitors issued divorce proceedings earlier this year. I have received a certificate of entitlement which says that the decree nisi will be pronounced soon but I do not understand what that means. Help!
This is a document which is sent to both of you which specifies the date upon which the decree nisi will be made. Technically this is a hearing at which either or both of you could attend although in practice no one does unless they object to the decree being granted or an order for costs being made against them. The decree nisi is the penultimate Order within the divorce process and it is significant for a number of reasons. The first is that six weeks after the date that the Decree Nisi is pronounced, the Petitioner can ask for the Decree Absolute, being the final Order that ends the marriage. The decree nisi is therefore the point at which it is confirmed that the Court has accepted the grounds for the divorce and the process can move forward.
Secondly, the decree nisi is important as it is only after that date that the Court is able to make a final order concerning the finances. Interim financial orders can be made at any time during the divorce process and an application to have financial matters resolved can also be made at any time. However, a final order can only be made after decree nisi and usually then takes effect after pronouncement of the decree absolute.
My wife and I reached a financial agreement at Court 2 years ago but because of the credit crunch, I have now come out much worse off than her. My business is now worth hardly anything and yet I have to pay her a lump sum of over £150,000. Can I apply to the Court for the order to be changed? It surely can't be fair that I am being left with so little.
Whilst it is open to you to apply back to the Court to vary the existing order, recent case law suggests that it is unlikely that you would be successful in attempting to renegotiate your settlement. In the case of Mr and Mrs Myerson, which was heard at the Court of Appeal earlier this year, Mr Myerson was in a similar position in that he retained the shares in his company and his wife received a property and a lump sum. Due to the effects of the financial downturn, Mr Myerson’s shares also dropped significantly in value and he therefore sought to vary the court order to reflect that change.
Unfortunately, the court was not sympathetic. The three judges of the Court of Appeal unanimously dismissed the case, ruling that they could not justify changing the settlement due to "the natural processes of price fluctuation, whether in houses, shares or any other property, and however dramatic".
Although their position was quite clear, it seems likely that Mr Myerson will now appeal to the House of Lords, Britain's highest Court in the hope of a more favourable decision being reached. Whilst it is worth keeping an eye on the outcome, it appears unlikely to result in a change as the courts have historically been keen to ensure that there is as much finality as possible with Court orders.
That said, an alternative to applying to change the content of the order might be for you to apply to the Court to extend the time for payment of the lump sum to your wife, if it has not already been paid. You should seek the advice of a matrimonial solicitor if this would assist.
My wife has divorced me for adultery and her solicitors are about to apply for the decree nisi. They are also suggesting that we enter a 'clean break consent order' and have said that they want to deal with this before the divorce is finalised. We did not own our home, neither of us has any savings and we are both on a similar income. We also have no children. I do not understand therefore why we need a court order since neither of us has anything. Could you please explain?
I understand why you feel that this is not relevant to you but without an order in place which has been approved by the court to confirm that neither of you will have any future claim against the other, the door would still be left open. This may never become an issue but imagine if you won the lottery or inherited a sum of money in the future – would you want your wife to be able to make a claim?
This is a fairly simple document and very rarely requires the parties to it to attend a court hearing. It can only be submitted to the Court after the decree nisi has been pronounced which is why your wife’s solicitors have contacted you now.
I suggest that you obtain legal advice once it has been drafted in order that the content can be checked by an experienced matrimonial solicitor who can then also help you to complete the form M1 which must be completed by both parties confirming their respective financial positions. Please note that there is a court fee of £40 to file a consent order with the court and it is usual for this to be divided equally between you.
My husband and I have recently separated but we have both agreed that we do not want to divorce just yet. This will probably be the case until our 3 children are older. Is there something that we need to do in the meantime given that matters are amicable and we are in agreement as to what should happen to the house?
If you have made the decision to separate, but you do not wish to divorce for the time being, it is strongly recommended that you should enter into a separation deed or agreement. This is a written agreement which confirms what you have both agreed should happen once you no longer live together. It sets out how you wish to deal with the finances and any arrangements for your children. It is likely to deal with:
- Living separate and apart, free from interference from your spouse
- When you are likely to seek a divorce
- What financial support (maintenance) will be provided for your spouse and/or children
- How the matrimonial home and other assets should be divided
- How any debts should be discharged
- What the arrangements for the children should be
The intention is that there will then be no outstanding issues which could cause problems later on if you do decide to pursue divorce proceedings.
Please note however that this document is not legally binding as it is not endorsed by the Court. Provided you both provide full financial disclosure and obtain independent legal advice however, the Court is likely to uphold the agreement reached unless there is a significant change in one party’s circumstances. Your solicitor would be in a position to draft this for you.
My wife has decided that she no longer wants to be with me despite the fact that we have been married for almost 10 years and have 3 children. Her solicitors issued divorce proceedings last month but they have since written to me suggesting that we try mediation. Does this mean that my wife has reconsidered the divorce and wants to attend counselling in the hope of us getting back together?
Unfortunately, that is unlikely to be the case as mediation and counselling are not the same. As you will probably be aware, counselling is an opportunity to discuss your emotions and to deal with any issues you have in the marriage in the hope of then rebuilding your relationship.
Mediation, on the other hand, is pursued on the understanding that your marriage has actually broken down. It is a way of dealing with the breakdown and the consequences arising from it, usually assisting in resolving issues surrounding the finances and children. Mediation is often a more cost effective method of dealing with the marital breakdown as it does not involve attending court and encourages cooperation and communication between the parties who meet with a trained mediator to talk through their issues and try to negotiate an agreement. This will usually be a compromise that you can both live with which is likely to be preferable to having a settlement forced upon you by the Court.
It is sensible, if an agreement is reached, for you to then discuss matters with a solicitor in order to obtain independent advice on the agreement and so that the necessary paperwork can be prepared.
I have discovered that my husband has been contacted by an old girlfriend having registered a few weeks ago on the Friends Reunited website supposedly to get in touch with old school friends. I have found emails that discuss the possibility of them meeting up and some of the content has been quite explicit. Is there anything to stop me issuing divorce proceedings on the basis of his adultery?
Yes. A court may only grant a divorce on the basis of adultery if your spouse has had a sexual relationship with someone else and if your husband has yet to meet up with this person, then that is an impossibility. The court will ask for details of the adultery, for example, dates and places when the act happened. The court will only grant the divorce if it's satisfied that adultery has occurred and that you can no longer stand to live with your husband.
However, although you are unlikely to be able to prove adultery, you could proceed on the basis of his unreasonable behaviour citing his improper relationship with this woman as one of the particulars. I suggest that you seek the advice of a solicitor in respect of the other details you will need to proceed on this basis.
My boyfriend of 3 years has suggested that he move into my house as his tenancy is due to expire shortly and he feels that we should take the next step in our relationship. Whilst I am happy to try this, I am concerned about him getting an interest in my property if it does not work out. Is there anything I can do to protect myself?
There is. I suggest that you consider a Cohabitation Agreement which is a formal written agreement entered into by two people in a relationship who are not married. This includes both heterosexual couples and gay couples. The purpose of the document is to provide for the rights of both parties in the event that the relationship breaks down. This is important because cohabiting couples do not have the same rights as married couples under the current law.
Such an agreement is suitable where either both parties own the home as tenants in common or, as in your case, where one party owns the home. It will usually provide that all property owned by each party prior to the agreement shall remain the property of that party in the event of separation and sets out what should happen to property acquired jointly after the date of the agreement. In addition to the home, it can also cover:
- personal property
- bank accounts (whether joint or in the parties’ sole names)
- debit and credit agreements
- day to day living expenses
- termination (of the agreement)
- transitional provisions
- costs
Please be warned that a Cohabitation Agreement is not necessarily enforceable or binding. Such documents are increasingly becoming more persuasive however and can be submitted as evidence to the court of the agreement reached. It is very important for both of you to obtain independent legal advice particularly where the terms of the agreement seem to favour one party rather than the other.
Q. I have been married for 35 wonderful years but my husband is now saying that he wants a divorce. We are both retired and our home is bought and paid for. We have had a good standard of living and have the benefit of cash savings together with my husband's final salary pension from his former employers. I have no pension income of my own having not worked throughout the marriage as I focused on raising our 4 children, who are now independent. I am extremely concerned as my husband has said that I have no right to claim his pension which will leave me struggling financially.
A. This is an upsetting position to be in after what sounds like a long and happy marriage however, your husband is not correct. As part of an overall financial settlement within divorce proceedings, the Court can order that you receive a share of your husband's pension. This would give you a pension fund in your own right along with the pension income that this fund produces. It could be that the services of a pension?s specialist will have to be engaged to look at your husband?s pension and give an opinion as to how best to divide it in order to maximise your respective incomes. Your solicitor can arrange for this. The advantage of taking a share of the pension is that you will not lose it should you subsequently remarry.
You have not worked during the marriage but do not say whether you worked previously. I imagine that you have therefore paid no or negligible national insurance contributions. You will therefore be able to secure a State pension of your own based on your husband's contribution record instead if his is the greater.
In cases such as this it is always preferable to seek a negotiated settlement as opposed to taking matters through the Court which can be time consuming and costly. I recommend you take legal advice in respect of the pension issue as well as the division of the other assets you have.
Q. My husband has recently issued divorce proceedings on the basis of my unreasonable behaviour which I have agreed not to defend as we are trying to deal with our split as amicably as possible. He also wants to deal with the financial implications as well as the arrangements regarding his contact to our son, Robert, who will live with me once our home is sold. His solicitor has proposed that we try collaborative law. Can you explain to me what this would involve as I have never heard the phrase before?
Collaborative law is a relatively new concept in dealing with family disputes. It is a process which attempts to resolve the issues which arise from separation and divorce which usually involve financial issues and arrangements with regard to children, as in your case. Rather than engaging in lengthy correspondence or going to court, it proceeds by way of a series of face to face meetings which will involve both of the parties and their solicitors. This means that legal advice is always at hand as negotiations progress. In choosing your solicitor, please be aware that they must have had specific training to conduct a collaborative law case.
The aim of collaborative law is that all four of you will work together to hopefully reach the best solution for all concerned, which is eventually embodied within a court order. Collaborative law is intended to resolve family disputes without having to issue court proceedings which means that matters remain amicable and it is usually also quicker and more cost effective.
Q. My wife and I separated 11 years ago after 20 years of marriage and divided our assets at the time. We have each moved on with our lives and our separation was amicable. We both now have our own homes and I have recently met someone else who I wish to marry. My wife has informed me that we cannot divorce as neither of us committed adultery during the marriage, or behaved unreasonably to one another. Is this right?
A. No. There is only one ground for divorce which is that the marriage has irretrievably broken down. In a case such as yours, this could be shown by you as having happened on proof of your wife's adultery; her unreasonable behaviour towards you; she having deserted you for a period of two years or more; you both having lived separate and apart for two years or you both having lived separate and apart for five years. Where spouses have lived apart for two years but less than five years, the consent of the other is required if there is to be a divorce. Otherwise, if spouses have been separated for five years or more, as in your case, the consent of the other is not required.
Therefore, you will be able to divorce your wife now with or without her agreement, provided it will not result in grave financial hardship, which is unlikely to be the case given that you have been financially independent from each other for over a decade. The procedure involves a Court process and you should contact your Solicitor to have the necessary paperwork drawn up.
Q. I was married 10 months ago and have now discovered that my new husband has been having an affair with one of my bridesmaids since the day of our wedding. He now says that they are in love and wish to move in together. I cannot believe that they would do this to me and I want to divorce him as a matter of utmost urgency so that I can move away from the area and not see either of them ever again. As he is willing to accept this, how quickly can it be done?
A. I appreciate that you are very upset but unfortunately, you cannot divorce your husband yet as it is not permitted during the first year of marriage. You are therefore going to have to wait for a further 2 months, although there is no reason why you cannot instruct a solicitor in the meantime in order that the necessary paperwork can be drawn up ready to be issued as soon as the time arrives.
As far as how quick the divorce process is, I can only tell you that it takes on average 5 to 6 months from divorce petition to decree absolute provided it proceeds without complication. There is however no reason why you would not be able to do this from another area if you really do feel the need to move away immediately. This is because the divorce proceedings themselves will be dealt with entirely via correspondence given that your husband is not intending to defend the proceedings.
Although you have not provided me with any details regarding the finances, I suggest that you also take advice on that aspect of the marital breakdown. Even if you have reached an agreement, it is sensible to have that incorporated within a Consent Order which can be filed after pronouncement of the Decree Nisi and will ensure that there are no outstanding claims between the two of you following your divorce.
Q. My daughter, Bethany, has said that she wishes to attend a drama group that meets once a fortnight on a Friday after school. Unfortunately, the meetings fall on the weekends when my ex-husband is due to have our daughter for alternate weekends of contact under the terms of a court order made last year. My daughter really wants to attend and I am worried that her father will not agree to collecting her for contact 2 hours later than ordered. Surely there is something that I can do?
A. There is. I suggest that you begin by trying to discuss the issue with your ex-husband, if necessary via mediation, to ascertain whether you can reach an agreement to alter the existing routine. By either offering your ex-husband some extra time for contact at the end of each weekend or by changing the weekends she is with him, so that he does not actually miss out on any time with his daughter, you may well find that he is more likely to be amenable to the change. In the alternative, you could suggest that he takes her to the drama group given how strongly she feels about it. He may be happy to get more involved in the activities that interest her.
If he remains unwilling to agree however, the only other option you have is to make an application to the court for a variation of the existing contact order, giving your reasons for believing this change to the order to be in your daughter's best interests. Again, it would be sensible for you to consider alternative proposals for contact that you can then put forward to ensure that your daughter's time with her father is not reduced.
Q. After many years of unhappiness, I am desperate to get a quickie divorce from my wife. My solicitor says that there is no such thing, despite what I have read in the newspapers. Is he right?
Yes, he is. Irrespective of the fact upon which you intend to rely when bringing the marriage to an end ? adultery, unreasonable behaviour, two years separation with the consent of the other party, two years desertion or five year's separation - the procedure effectively takes the same amount of time from divorce petition to decree absolute.
Sometimes, a divorce petition based upon the unreasonable behaviour or adultery of the other party is referred to as a "quickie divorce", simply because it is not necessary to wait for a period of separation to expire (whether two or five years) before commencing the proceedings. It will however still take approximately 5 or 6 months from start to finish and potentially longer if the proceedings are defended by your spouse or there are complex financial issues to resolve.
Q. My ex wife has a residence order in respect of our daughter, Rachel, with whom I enjoy regular contact. Unfortunately, we have been unable to agree on which secondary school Rachel should attend in September. My ex wife seems to think that because she has a residence order, her view should carry more weight than mine. Is this true?
A. Because you were married to Rachel's mother, you have parental responsibility for her. This means that you share responsibility with your ex wife for making important decisions on your daughter's behalf, which includes decisions regarding her education. The exercise of parental responsibility is not dependent on who your daughter is living with.
I suggest that you try and discuss the issue with your ex wife, explaining to her the reasons that you think your choice of school is preferable. You can do this between the two of you or with the assistance of a trained mediator, who may be able to help you reach a compromise. If you remain unable to reach an agreement with her then unfortunately, you will be left with little option other than to apply to the Court for a specific issue order. This is an application to the Court to determine the school that it believes it to be in Rachel's best interests to attend.Q. My girlfriend and I are planning to marry next year and it will be the second time around for both of us, having met when we were still married to our respective other halves. We each have considerable assets from our first marriages and having discussed matters, we would want those assets to be protected for our children. A friend of mine said that we could get a prenup but I did not think that they were recognised in this country. Is that true?
A. Although pre-marital agreements are not currently binding under English law, they remain one of the factors to which the court should have regard in assessing the financial entitlement of each party on divorce. In recent years, the courts have moved towards paying their terms greater heed, provided of course that the agreement has been fairly drafted and fulfils certain criteria.
In fact, in the very recent case of divorcing millionaires Stuart and Susan Crossley, the Court of Appeal has confirmed the persuasive nature of the pre-marital agreement, it being considered "a factor of magnetic importance" rather than simply a peripheral aspect of the case.
Given the increasing significance of such agreements, I suggest that you and your partner think very carefully about separately taking legal advice before your impending nuptials. Although many people believe such agreements to be unromantic, they will hopefully mean far less heartache in the future.
Q. My wife had an affair with her boss a year ago. She apologised and I agreed to try and make the marriage work. Unfortunately, I just cannot get past her infidelity, especially as she still works with him and so I want to start divorce proceedings, on the basis of her adultery with her employer. Is there anything to stop me doing that?
A. Yes. As you have been aware of the affair for over six months and yet chosen to continue to live with your wife, you cannot rely on that instance of adultery. In these circumstances, you may wish to discuss with your wife issuing a divorce on agreed grounds that could rely on her behaviour, with a view to obtaining the divorce you both want quickly. The other options are to wait for either 2 years separation which would be dependent upon your wife's consent or 5 years separation which has no requirement for consent to be given. In either event, it would be advisable to ensure the financial arrangements between you are agreed either through mediation or by court order.
Q. My ex-wife and I divorced last year and our 2 children, Molly and Frank, live with her and see me at the weekend. She has now remarried and has had 2 more children with her new husband. She wants all the children to have the same surname, which I am not happy about. My ex-wife says that it is nothing to do with me. Is that really true?
A. No. You share parental responsibility for the children with your ex-wife and therefore she cannot legally change their surnames without your consent. In fact, the courts have stated that a name change is so important that any father should be asked to give his consent. If there is a dispute then the problem can be discussed and mediation is usually a good option as you can both express your views and seek to reach an agreement that provides the best for your children.
If she is not deterred and changes the children's surnames in opposition to your wishes or refuses to mediate, you have the option of applying to the court under the Children Act and ask the court to decide a "specific issue" - namely, whether it is in the best interests of the children that their surnames be changed.
Q. My husband and I separated 4 years ago and since then I have moved in with a new partner and we have had a child together who is 18 months old. I intend to commence divorce proceedings and in addition to the divorce petition, the staff at the court office have asked me to complete a form called a "statement of arrangements for children". Do I really have to complete this given that my child has nothing to do with my husband?
A. You do. The court will expect to see a completed statement of arrangements form if either party has any children either under the age of 16 or under the age of 18 if they are still in full time education and this is irrespective of whether they are children resulting from your marriage. The reason is that the judge must certify that he is happy that the arrangements for all the children have been thought through and are satisfactory.
If you are unsure as to how the form should be completed or how much information you are obliged to provide, you should obtain advice from a solicitor as court staff are not legally qualified and therefore will be unable to answer such questions.
Q. My wife ran off with another man last year, leaving me to look after our 2 young children. She has now been in touch and says that she wants a share of the equity in the marital home. Surely she is not going to be entitled to anything?
A. The courts are often asked to consider settling finances between a husband and wife when a marriage has broken down. The judge will not make moral judgments on a party's behaviour but will look dispassionately at the length of the marriage, the contributions each party has made (financial or otherwise) and their future needs. The court must give the needs of the children paramount importance but are then trying to settle the assets fairly regardless of fault or blame. Before any agreement is entered into and during the negotiations, it is helpful to have access to specialist legal advice to assist in understanding the types of order that a court can make.
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