Lisa-Marie Leanders is a Solicitor at Nelsons Solicitors Limited in Leicester, one of the leading firms in the East Midlands, with offices also in Nottingham and Derby. Lisa-Marie qualified as a solicitor in 2003 at a firm in Leicester and after 3 years at a firm in Leamington Spa, she has returned to practice in her home town of Leicester. She is a member of Resolution and deals with all areas of relationship breakdown including divorce, cohabitation issues, pre-nuptial agreements, disputes involving children and ancillary relief matters (finances), in which she has a particular interest. For details, see Nelsons details and Nelsons Solicitors website.
Q. My wife issued divorce proceedings after we had been separated for 2 years and I have done everything necessary so that the divorce progresses quickly. She has however now stopped responding to her solicitor and although she could have applied for the Decree Absolute 4 weeks ago, she still hasn’t done so. Can I now finalise the divorce or do I have to start from scratch?
A. If your wife, as the Petitioner, does not apply for the decree absolute, then you, as the Respondent may make a similar application. That said, you will need to wait until three months after the date on which she could have first applied (ie six weeks and one day plus three months).
Please note however that the application is not granted automatically and usually requires attendance at court; it is not an application which is automatically granted simply by lodging a straightforward notice to the court as it would be if your wife applied.
You should also note that if you then remarry without a financial application in the divorce proceedings being issued, your entitlement to apply for a financial settlement may have gone, so please do not remarry without having checked your legal position.
Q. My husband Craig and I have not been able to agree what should happen to our home now we are getting divorced. We have been going backwards and forwards for months. He has therefore now instructed his solicitor to apply to the Court for the finances to be dealt with and he says that he will be asking the Court to order that I pay his costs of the proceedings. There’s no way I can afford my own costs let alone Craig’s. Help!!
A. Please do not panic. Costs in financial order proceedings are subject to the general rule that the Court will not make an order that one party should pay the costs of the other.
The Court will usually only depart from this rule on the basis of the conduct of a party either before or during the proceedings. In making a decision in this regard, they will consider:
In practice, what this means is that if you are sensible and behave reasonably throughout the process, then it is highly unlikely that a costs order will be made against you. If you remain concerned however, then I suggest obtaining legal advice yourself.
Q. My wife’s solicitors have suggested that we deal with the finances on our divorce through arbitration. I’m not really sure what this is. Is it like mediation? Please help me to understand.
A. Essentially, arbitration is another form of dispute resolution. When a couple is divorcing and are unable to reach a settlement in respect of the finances or property (this is not relevant to children disputes), they can appoint an arbitrator.
That arbitrator will be a qualified legal professional who will hear each party’s case (which they may present themselves or with the assistance of a legal representative) and then make a decision, which is called an ‘award’. This decision will be upheld by the court and is legally enforceable, unlike mediation which is non-binding. If you and your wife were unable to reach an agreement, then there is no way to compel you to settle via mediation. Arbitration, on the other hand, is a little like having your own private court.
The meetings which inform the arbitrator’s decision can take place in person but can also be done over the phone or even in writing. They are kept entirely private. Only the arbitrator and the parties themselves will know what has been said in the course of the meetings.
So effectively, the upshot of arbitration is that you have a legally enforceable decision that will often have been reached without the time, stress and huge expense of engaging in protracted court proceedings. That is not to say that it won’t be costly, because you will have to pay for the arbitrator’s time (as legal aid is not available) and it is best practice to have the agreement encompassed within a court order, although generally it will be quicker and cheaper than court proceedings with the added incentive of course that it is private.
Certainly it is something which you should carefully consider. More advice can be found at http://ifla.org.uk/.
Q. My son and his wife separated a month ago and it has become really acrimonious, especially concerning their children, Michael and Lorna. Despite having previously enjoyed a really close relationship with my grandchildren, I have now not seen them in over a fortnight. It is really upsetting and I don’t know what to do. Can I apply to the court for an order?
A. The end of a marriage is a stressful time not only for the parents and children but also for other close family members. One of the biggest fears for extended family members is that the time that they would usually spend with the children will be affected, as appears to unfortunately be happening in your case.
Although there are often initial difficulties like this, hopefully when the upset and anger associated with the break-up has begun to subside, both parents will recognise that you (and any other grandparents) have a lot to offer and that the children themselves will wish to see you. It may therefore help for you to let the dust settle before making a request for contact. You should also bear in mind that it might be that contact will only take place when your son is having contact with Michael and Lorna, rather than separately.
Occasionally, grandparents can be given separate contact. However, there is not a presumption of contact between grandparents and grandchildren. Grandparents do not have legal rights as parents do, but they can apply to the Court for contact arrangements to be made. Grandparents have to apply first of all for permission, before then being allowed to proceed with their application for contact (formerly access) to their grandchildren.
Independent legal advice should be sought so that your application has the best chance of being successful.
Q. My husband sent a copy of our marriage certificate to his solicitor because he is planning to apply for a divorce. The solicitor says she needs the original but for me, it holds sentimental value as we have parted on amicable terms. Why can she not just use the photocopy?
A. When it is issued at Court, the divorce petition must be accompanied by either the original or an official certified copy of your marriage certificate. A photocopy is not sufficient. Please note that the court does not return your marriage certificate at the conclusion of the divorce proceedings, so you cannot release it to your husband on the basis that you will have it back afterwards either.
That said, if you were married in England or Wales, you can easily obtain an official certified copy of your marriage certificate from the office of the Registrar of Births, Deaths and Marriages for the district in which you were married if you would like to retain your original.
Please note however that different formalities apply if you were married abroad and it may be more difficult to obtain an official copy and therefore you may well have to part with the original. I suggest however that you look into it further, with the assistance of a legal representative, if that is the case.
Q. My wife has started divorce proceedings on the basis of me apparently behaving unreasonably. I am offended by the lies she has told on the divorce petition. I want to fight the divorce but I’m not sure how to go about it. Can you please help?
A. There is a procedure for defending divorce proceedings but to be honest with you, it’s not going to be worth it in the long run and you should consider my advice below very carefully before making a decision.
I understand completely how unpleasant and upsetting it can be to receive a spiteful and distressing petition. I must however advise you to try to be pragmatic and sensible right now.
Instead of immediately starting a lengthy and costly battle with your wife, you could try and agree a way forward with her in terms of a divorce. Defended divorce proceedings can be very difficult and even if you are successful, you are still likely to end up with a divorce but after a bitter contest and also with a substantial legal bill to pay at the end.
I therefore urge you very strongly to take legal advice about your position because if you acknowledge that your marriage has irretrievably broken down, as your wife indicates, then having a lengthy fight about who is to blame is not going to make that any less the case. The marriage will still be over and you will still need to reach a conclusion.
In terms of alternative options, you can consider a divorce based on an amended petition, removing those allegations which you find most offensive or cross decrees with both of you divorcing each other, with no admissions being made on either side. With the latter option, you then issue a petition based on your allegations against your wife so that you effectively out your ‘side’ across, but you will in all cases agree that each side pay their own costs or there be no order for costs, so that things remain equal and as amicable as they can be.
If despite this, you still wish to engage in defended proceedings, I suggest you obtain independent legal advice although I believe that most solicitors will say the same thing. We rarely see defended divorce proceedings for the very reasons I have explained above. Please note however that you only have 29 days from receipt of the divorce papers to file your defence and therefore you will have to make a decision fairly quickly.
Remember always to concentrate on the issues that are actually much more important right now, such as your children and the finances and to seek legal advice if you have any queries.
Q. Dean, the man I have been with for the last 11 years, has just proposed. I’m over the moon but I’m also unfortunately already married. I got married in 1978 when I was only 18 and the problem is that I haven’t seen my husband for 25 years and have absolutely no idea where he lives. What do I need to do so that I can divorce my husband and marry Dean?
A. If you want to divorce your husband in order to enable you to marry Dean, then rest assured that it is possible for the court to end the marriage even if you do not know where your husband is.
What you will need to do is show the Court that you have done everything you can to find your husband in order to serve the divorce papers on him. First and foremost, you can have the Court serve the divorce papers on him at his last known address to see if he is still there. If the papers are returned unopened to the Court, they will let you know and then you must exhaust any other options you can think of to locate him. By way of example, you could contact his relatives, friends, last known employer or bank/building society if you still have those details.
If you still cannot find him, complete a statement to dispense with service of the divorce petition and send this to your local divorce county court . You’ll have to pay a £45 court fee to make the application but if you explain what steps you have taken to locate him and that it has been unsuccessful, the Court will generally allow the divorce to progress even though your husband has not been served with the papers.
If it is possible that your husband is missing and presumed dead, you can end the marriage using form D8D which you can find via www.gov.uk. You can use this form to remarry, but not to get a death certificate, financial order or apply for probate.
As this is not a straightforward procedure, it may be worth seeking legal advice.
Q. My husband and I were married in Florida in 2009. Our marriage has now broken down and he is seeing someone else. Do we have to get divorced in Florida because that is where we were married?
A. No. Where you were married is not the relevant issue when determining where divorce proceedings should be dealt with. The relevant issue is where you and/or your spouse are living at the time that the Petition is issued. To decide which country is most appropriate, you will need to consider which country you are domiciled in and/or habitually resident as this will determine whether or not the Court is able to deal with it (i.e. whether the Court has jurisdiction).
There is sometimes a choice as to the jurisdiction in which divorce proceedings originate. Within the EU, a member state will be competent to deal with the divorce if the couple are both nationals of that state - or, in the case of England and Wales, are domiciled there - and/or either or both of them are resident there. This can sometimes depend upon a minimum period of residence in the country in question.
If you are living outside of the EU and you are nationals of another country then it is possible that there may be more than one court that is able to deal with your divorce. This will often depend upon your usual place of residence or other connection to a country.
The issue that is likely to direct where the divorce should take place will be the level of financial settlement you can expect to receive and whether there are issues to be determined in respect of any children of the family. It is of the utmost importance to seek specialist legal advice in all locations where a divorce could possibly be issued, as financial settlements can differ significantly from country to country.
The location of your assets must be considered and thought should be given to whether the country dealing with the divorce will be able to successfully enforce its orders abroad. Again, expert legal advice should be taken, particularly if there is a risk of your spouse trying to hide assets or move them out of your reach.
Q. My wife and I have separated after eleven years of marriage. We have two children aged five and eight. The main asset is the family business which I inherited from my father prior to the marriage. My wife has never been involved in it. Is my wife going to be entitled to a share of this? I don’t think that would be fair.
A. Inherited wealth is a contribution made by one of the parties and needs to be taken into account, but treated differently. Inherited wealth may well carry little weight in terms of being treated differently though if the parties’ needs cannot be met without recourse to it. The effect therefore is that much will depend on the extent of your other matrimonial assets and whether your wife’s needs can be met from those other assets. Where needs can be met in bigger money cases, then there may be good reason to depart from equality.
Difficulties often arise when one party brings wealth to the marriage, inherits assets or is able to add to assets following separation. Various factors are taken into account when dividing assets following separation. Inherited wealth is just one of them. There is no order of importance and each case is treated on its own facts. Flexibility is built into the exercise of discretion to find the right answer to suit each case. The objective is to reach a fair result.
The fact that wealth is inherited and not earned justifies it being treated differently from other marital assets. The duration of the marriage and the duration of the time the wealth has been enjoyed by the parties will also be relevant and the parties’ standard of living during the marriage will be taken into account. No formula or percentage would provide the right answer.
There are three particularly important matters to consider. The sharing principle applies to all assets, whether they are matrimonial or not. If assets are “non-matrimonial” there may be reason to ring-fence them provided the parties’ needs can be met.
Secondly, it is important to consider the length of the marriage. The longer the marriage, the greater the prospect that assets will be shared, as it is more likely that the non-matrimonial property has been intermingled with matrimonial property.
Thirdly, it is also helpful to consider how the parties live their lives in terms of the level of the standard of living enjoyed by the parties during their marriage.
There is a lack of clarity and predictability in this area of law and advice from a solicitor is nearly always required within proceedings of this nature.
Q. My husband does not know it yet, but I have been thinking about starting divorce proceedings because I no longer love him. Do you have any tips before I take that step?
A. By thinking about a divorce before proceedings start, you may be able to reduce the conflict and stress that people often face when they embark upon the divorce process. Planning ahead allows you not only to make sensible decisions now but also to start preparing for your life after the divorce.
I list below some of the important things to consider when preparing for a divorce:-
The amount of information required within divorce and the accompanying financial proceedings can seem completely overwhelming, so it is sensible to begin gathering it together as soon as you possibly can. You will need to have a record of all bank and building society accounts, credit cards, loans, investments, mortgages and title information. It also helps to have your most recent P60 and pay slips if you are employed or 2 years accounts if you are self employed. If you do own a business, make sure that you have full details including an idea of its value. There is also likely to be other paperwork it would be helpful to make copies of such as deeds, prenuptial or postnuptial agreements, wills, and powers of attorney.
Once you have gathered all of the necessary paperwork, you can then estimate the value of the marital pot. This will help to give you some idea of what you may be entitled to when you get divorced.
Consider keeping a budget of your income and expenses. This will help to provide documentation for determining the amount of maintenance that may be awarded, as well as give you an idea on a more practical level of what you will require to live on after you are divorced.
It is important to avoid incurring any additional debt during your divorce, as you will want to keep any assets as liquid as possible. Likewise, do not allow your spouse to take on more debt, or convince you to refinance the matrimonial home before filing for a divorce. This will only serve to further entangle the finances and leave both of you with larger liabilities to try to manage after your divorce.
It is also a good idea to open a current account in your own name to safeguard your finances if you only presently have accounts in joint names with your spouse. This will allow you to organise your finances and you can use the account to cover emergency expenses, legal fees, rent, deposits, utilities, etc. This account will allow you some financial control until the divorce, but you need to remember that the money in the account is subject to division during the divorce.
Although the court can of course make an order providing you with maintenance, there is a duty upon the court to consider the financial independence of the parties moving forward. It is therefore important to try to ensure that you can provide for yourself after your divorce. If you are not currently employed, update your CV and begin to think about what type of work you would like to do. You might also consider returning to school to get training, either to advance your career or enter the workforce.
It is generally beneficial to consult with a solicitor during the early stages of considering a divorce. A qualified family lawyer can discuss what your options are, as well as make suggestions to help further prepare yourself for an eventual divorce. You can also get a rough estimate of what your divorce will cost during your initial consultation, possibly allowing you to save money in advance. Plus, when you do decide to file, you will already have someone you know and feel comfortable with to handle your case.
It's a good idea to have a full record of your possessions, with photographs if possible, to include the contents of your house, your vehicles and other property. If anything ends up going ‘missing’ during the divorce, this can provide proof of its existence. It can also help jog your memory when it comes time to divide the matrimonial pot, particularly if you have by then moved out of the marital home.
If you have concerns that your spouse may damage or take your belongings once proceedings commence, then you might consider storing important items, such as valuable documents and jewellery, elsewhere. The same thing goes for sentimental items that might get destroyed. These belongings can be stored with a friend or family member until everything is settled between you, of course always remembering to disclose their existence during any negotiations.
It is often tempting to just move out of the marital home, but hold fire on making such a big decision until you have sought legal advice, as moving back in can often be far more difficult if you later change your mind. It could also have an effect on the finances or your relationship with your children.
Also, once separated, try to avoid rushing into a new relationship. This is likely to not only anger your spouse, possibly making them less cooperative during the divorce process, but it could also have repercussions in terms of the finances.
Q. I am in the process of trying to arrange contact with my sons, Lloyd and Jack, over the Christmas period. Do you have any general advice? My former partner and I don’t even know where to start!
A. At this time of the year, family law solicitors are usually inundated with enquiries from clients about contact with their children over Christmas.
My advice is generally that if you live close enough to one another, the day can be shared between you so that neither the two of you, nor your children miss out, especially if it is your first Christmas apart. Perhaps one parent could have the children from Christmas Eve until early afternoon on Christmas Day and the other could have Christmas afternoon and Boxing Day.
If you do live further apart, it is not really fair to expect your children to spend hours travelling on Christmas day. It is also something that you, as parents, would probably prefer not to be doing when you should be enjoying the day with your children. In those circumstances, I encourage one of the parents to have contact on Christmas Day and the other on Boxing Day. It would be unusual for a child to complain about having 2 Christmases!
In either scenario, it is then important that the following year, the routine alternates so that both parents get to see their children on Christmas morning at least once every two years.
It is of course difficult to reach an amicable arrangement for contact when the parents may be in the midst of an acrimonious divorce or financial proceedings. I suggest however thinking firstly about the effect on your children of spending Christmas away from either parent as well, of course, of the cost of using the Court to make a decision about where the children should spend the festive period, when there are far more sensible things to spend your money on. Resisting contact to punish your former partner indirectly punishes the children and demonstrates that you are unable to put their needs first.
Make plans as far in advance as you can to avoid arguing during the holidays themselves and try not to put pressure on your children by making them decide what they want to do.
A good family law solicitor will encourage you to put the needs of the children first and foremost. Unless there are welfare issues, the children should be spending quality time with both of their parents.
Q. What is a SPIP? I attended court last week as part of an application for contact with my children and both my former partner and I have been told by the Court that we need to attend one before the next hearing. The problem is that I don’t really understand what it entails or how to go about setting it up. Please help!
A. SPIP stands for the Separated Parents Information Programme which is a course that is currently delivered by National Family Mediation and its local providers. The programme is designed to support attending parents with information on:
It may also be appropriate:
Parents are provided with information to enable them to consider where they are in their own ‘separation journey’. They will see a video made by young people which dramatises the effect of parental conflict on children. This raises key issues for discussion and parents will then go on to consider the needs of children in separating families and identify problems specific to their own situation. Time is spent looking at ways of you improving communication with your children and ex-partner.
Finally, parents consider the emotional aspects of separation and loss. They consider how they can move forward and identify their sources of support, including family mediation. The SPIP is helpful because it encourages both parents to see things from the child’s perspective, to listen and reflect, and to communicate and manage conflict more effectively with their ex-partner. That said, you will not attend with your ex-partner, you will both be invited separately.
The course is free of charge as it is funded by the Children and Family Court Advisory and Support Service (Cafcass) and it takes 4 hours to complete. C urrently, you can only attend if ordered to do so, as in your case. If you do not have a solicitor, then make an enquiry at the Court as to the providers of the course in your local area and then refer yourself. If you do have a solicitor, then they will make the referral for you.
Q. My husband and I are divorcing after 15 years of marriage. We have three children aged 14, 10 and 8 and I would therefore like to ensure that the divorce proceedings remain as amicable as possible. Can you please advise me on how we go about this?
A. I always advise strongly to try to keep matters amicable and there are a few things that should be avoided whilst in the process of divorcing. Here are my top 5 tips on what not to do:
It is so easy and typically routine to have a heated discussion via text or email rather than doing so face to face. However, all types of electronic communication have the potential to leave a trail and could therefore possibly end up being used as incriminating evidence against you in the hope of supporting your spouse’s case.
Social media sites such as Facebook, MySpace and Twitter now also play a prominent role in many divorce cases. Status updates, online photo albums, profile pages, comments, etc. can all be used as evidence to contradict statements previously made and potentially help to prove adultery, mishandling of assets, alcohol/drug use, etc, so be careful what you say and post online.
Resist the urge to snoop. Historically, it has been commonplace to do so, particularly if you suspect that your other half has been up to no good. However, following a Court of Appeal case in 2010, that is a risky course of action and removing original documents, copying those belonging to your spouse or intercepting emails could leave you (and potentially your solicitor) vulnerable to a criminal action for breach of confidence.
Whilst of course there is nothing at all to stop you dating following the breakdown of your marriage, proceed with caution. Having a new partner may potentially cause difficulties insofar as making arrangements concerning your children and it also might open you up to allegations of adultery. Certainly, if you begin to cohabit, then it may have repercussions relating to the division of assets and any maintenance order/agreement.
Many people see shopping as a form of therapy, but if you are in the midst of a divorce or even contemplating one, you should try to avoid splurging. Now is not the time to increase your debt or to “get even” with your spouse by spending marital assets which could be seen as deliberate and be taken into account in any financial settlement.
Once your decree absolute is granted and you have resolved the finances so that you know how much money you can safely spend, feel free to go on that shopping spree. But, until then, proceed with caution.
Q. My fiancée and I were in the midst of planning our wedding for next year when she dropped the bombshell that she had bumped into an old boyfriend recently and they want to try again. She is now planning to move out of my house next week to live with this man. I am happy for her to go given her behaviour but I want to take the engagement ring back as our relationship was clearly based on lies. Surely I have that right?
A. It is unfortunately the case that many engaged couples, for whatever reason, do not make it down the aisle. Instead, the relationship ends and their assets have to be divided between them. In your case, it does not appear that your home will be an issue although clearly the ring is.
Generally, both parties will feel that they, morally, have the right to keep the engagement ring, whether it is because they paid for it, because their partner caused the relationship to break down or because they viewed it as a gift.
The Law Reform (Miscellaneous Provisions) Act 1970 deals with this issue and it is actually relatively straight forward. This legislation states that:
The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.
Basically, although it will seem extraordinarily unfair in your circumstances, this means that unless the two of you had an agreement that she would return the engagement ring if the wedding was cancelled, then she is under no obligation to return the ring. The courts will however generally say that there was an implied intention that the ring would be returned if it had particular sentimental value to you, for example, if it was a family heirloom. Other than that, you are unlikely to be successful in seeking its return.
It is of course possible to ask the court to adjudicate on the issue if you are not in agreement, although given the high costs of litigation, this should always be a last resort.
Q. My husband and I have been renting for some time but as we now want to start a family, we would prefer the security of our own home. We do not have enough for the deposit so my parents have offered to lend us what we need. They aren’t worried about protecting themselves but I am conscious that if my husband and I were to separate for any reason, then they could lose their retirement fund. Is there anything we could do?
A. Managing to get onto the property ladder has become increasingly difficult over the last few years and so more and more often, first time buyers find themselves having to ask their parents to give them the financial help that they require to buy their own property.
As in your case, this money is often willingly loaned to a family member to assist them in buying a property and there are rarely any strict terms for repayment. However, if your relationship should break down, the benefit of your parents’ money could be given in part or in whole to your husband rather than remaining in the family. This is rarely what is intended and can cause considerable upset.
In such a situation where a couple is separating or divorcing, to seek to argue that a family loan should be repaid will usually find little support. There is seldom any documentation to support the contention that the money was loaned rather than gifted because the parties involved are family and trust each other. To say that you always intended to repay your parents or for your parents to say that they had always expected the money to be repaid to them, will rarely be enough to convince the court that the end of the marriage or relationship should signal repayment of the monies.
When family money is provided to children, whatever their circumstances at the time, it is therefore advisable for the investment to be formally documented, just as if it were an independent loan. All the parties should take their own legal advice, proper documentation should be drafted and entered into and the investment or loan should be recorded against the property register at H.M. Land Registry.
It is important to understand that the court has a duty to consider all the relevant factors when determining the division of assets on divorce, particularly how the needs of the parties and any dependent children will be met. A loan from a family member will only therefore be one of the factors the court will take into account and without any supporting documentation, it is unlikely that a court will believe that the monies have to be repaid, instead viewing it as a ‘soft loan’. The funds will therefore remain in the matrimonial pot for division during the divorce.
Careful consideration should therefore be given and independent legal advice obtained before your parents loan their hard earned savings to you, whether your relationship is unstable or not.
Q: My husband and I are both directors and shareholders in our family business. We have been married for 20 years but I would now like a divorce. What rights will I have in the business if I divorce my husband? My husband has said that it would probably be best if I simply resign but I have worked in the business for 10 years and helped set it up. I feel I have a financial stake in the business and I wondered if I am entitled to any compensation? What should I do?
A: Coping with the legal, practical and emotional difficulties following a marital split can be hard enough, but divorcing spouses who are also business partners often face further complications.
As a starting point on a marriage breakdown, a spouse is generally entitled to the value of their shareholding within the company, and to the amount, if any, standing to the credit of their directors loan account. On a different note, so far as partnerships are concerned, the Court will first look at the partnership agreement, if there is one. If there is no partnership agreement, then the court will draw inferences from the extent that the spouse has played a part in the business or financially contributed to the business.
Often, the crucial question for the Court will be ‘Can money be raised to “pay off” a spouse?’ It may be possible for part of a business to be sold, or for the remaining director or business partner to borrow money or transfer borrowings to raise money. It may also be possible for a company to purchase it’s own shares, subject to meeting various conditions which are set out by the Companies Act. A spouse may be entitled to an enhanced order where contributions to the welfare of the family, and in particular to the business, have been exceptional or outstanding. This will be of particular relevance where a spouse has been a Director, shareholder or partner in a family business, and has played an active role in that business.
An important matter is to never forget the importance of the business as a source of income to both parties and the family as a whole and therefore the Court will try to avoid ‘killing the goose that lays the golden egg’.
Recent case law has shown that, in determining a spouse’s entitlement to financial relief, the Court should look to rules relating to the break up of business partnerships rather than simply looking to provide an income for a spouse to continue living in the style to which they have become accustomed. Case law shows that contributions made by spouses to family businesses and their legal entitlement, will be more readily recognised than they have been in the past. In this case, in any event, you indicate that you are a director and a shareholder within the business so your legal entitlement stems from that very fact.
As with all financial issues within a matrimonial breakdown, it is really better to negotiate to reach a satisfactory conclusion if at all possible.
Q. I issued divorce proceedings 3 months ago as my wife and I have been separated for just over 5 years. I had hoped that it would progress quickly as there are no children or financial concerns but she has not responded. Is there nothing I can do now to get divorced as I would like to marry my new partner?
A. As your wife has not responded by completing an Acknowledgement of Service, the Court has no evidence as to whether she has actually seen the papers requesting a divorce. Your best options therefore are either to apply for the court bailiff or arrange for a process server to serve her personally with the papers.
That person will then file with the court an affidavit either confirming service or that your wife is attempting to evade service and therefore this enables you to apply to the District Judge for service to be dispensed with. If that is agreed by the court, then you can proceed with the application for the decree nisi in order to progress matters.
If you are at all unsure as to the procedure, then I suggest you approach a solicitor who can assist you with the application.
Q. My husband and I are planning on separating and are trying to keep matters amicable. He is about to move into our second property now that the tenant has vacated and I imagine that we will keep one house each moving forward as they are both worth broadly the same. We will probably leave things as they are for the time being as we are in no rush to divorce until our son finishes college in June but is there any reason that we should deal with the houses now?
When a couple are married and living together, if they want to transfer assets between each other they can do so without a charge to capital gains tax (CGT) arising. This always remains the case when it comes to the matrimonial home, which will qualify as being tax-free on transfer even following divorce or separation provided it has been the couple’s main residence throughout the entire period of ownership.
What many couples unfortunately don’t appreciate is that when it comes to any additional properties, this tax benefit disappears at the end of the tax year following permanent separation and not on their divorce, which may be some time later. So, if you separate now as planned but then do nothing until June, by that time, because it will be after 5 th April, you will have already lost the ability to transfer the second property between yourselves tax-free.
So if you do wish to separate now, I suggest that you take tax advice as soon as possible as the clock is ticking. It would also be sensible to take legal advice concerning your entitlements on divorce as it may well be sensible to enter into a Separation agreement dealing with the finances as a whole.
In the alternative, particularly f rom a tax point of view, you may wish to wait to separate until 6 th April or thereafter, which would then give you a whole year to deal with the transfer of the second property to your husband should that be necessary and of course to consider any other financial implications.
Q. My wife and I cannot agree what should happen to our house now that we are divorcing and she has therefore made an application to the Court to deal with the finances. I am aware that I have to complete a Form E but then I understand from my solicitor that we have to attend a First Directions Appointment. I am really worried about going to Court. What is likely to happen?
A. This first hearing in a financial remedy application is a fairly short and informal hearing (usually 15 to 30 minutes) where the District Judge, sitting in his or her Chambers (like an office rather than open court), will want brief details from both parties’ solicitors as to what the case is about. You will not usually have to speak to the Judge as your solicitor will speak on your behalf.
The Judge will then make an order, known as a directions order, which tells the parties what further steps they must both take, and by what dates, in order for the court to be able to deal with the case. This is effectively to ensure that the Judge has a full picture of the case by making sure that both parties have provided their full financial disclosure to the Court.
The Judge may, for instance, direct that any house or business must be valued and that any resulting valuation report must be filed at court, or that further bank statements must be obtained and filed. Fees for valuations of properties or businesses must usually be paid for by the parties jointly.
Often at this hearing, it will be the first time that you, your wife and both of your solicitors will be in the same room at the same time. It is therefore often possible to agree matters at this stage and if that is the case, then an agreed Consent Order can be presented to the Judge for approval.
If it is not possible to agree matters, then in addition to the parties being ordered to file further information, it will usually be ordered that a Financial Dispute Resolution (FDR) hearing is listed which is the next step towards reaching settlement.
If you are still concerned however, I suggest that you speak to your solicitor who will no doubt be able to reassure you.
Q. My husband and I separated 2 months ago and things have become rather nasty while we try to agree what should happen to the house. He is being very spiteful towards me at home and even violent on occasion. There is a history of him behaving in this manner and I feel very intimidated by him. My solicitor says that only recently, the law has changed so that I have to try mediation to reach an agreement about the finances. I am worried about being in a room with him and the way that he often puts pressure on me to agree with him. Do I really have to go?
Your solicitor is right that on 6 th April 2011, the law changed by the introduction of the Family Procedure Rules 2010. Contrary to popular mythology however, they have not made mediation compulsory. What the Rules have done is introduce a requirement for all potential applicants to attend a meeting with a mediator to consider whether the dispute is capable of being resolved through mediation before making an application to court. The Protocol applies to “relevant family proceedings” which includes the financial proceedings that you may want to issue.
As you do not mention any criminal or civil proceedings being necessary because of your husband’s behaviour during the last 12 months, you would probably not be exempt from attending a mediation assessment meeting. However, if you explain your concerns to the mediator when you meet with them alone, then it is unlikely that you would be forced to actually mediate with your husband in light of your concerns and you would then have the form necessary to progress your court application if that became necessary.
Q. I separated from my husband 8 months ago and we are now in the midst of very acrimonious court proceedings to deal with the finances. I went to see him at his office to talk through things and when he left the office, I copied some of his bank statements which were lying around as they are for accounts that he has not disclosed within the proceedings. My solicitor says she cannot look at them but I don’t understand why. He is lying to me and the court – how can this be fair?
A. I completely understand why you are frustrated but your solicitor is right not to take the papers from you. Previously, solicitor often encouraged clients to ‘self help’ by looking at their spouse’s paperwork provided they did not use force or retain copies rather than originals. These papers then had to be disclosed to their spouse’s solicitor but could also be shown to the court.
Unfortunately, the case of Imerman v Tchenguiz, which was decided in July 2010, changed this completely. As matters stand now, copying or even looking through your spouse’s confidential papers could find you and your solicitor in breach of the laws of confidence and even some criminal laws.
What it means in practice is that you will not be able to submit any such papers to the Court and therefore prove that there are other accounts or assets.
Please believe me when I say that this is clearly far from acceptable and it is for this reason that the case is now being called a ‘cheat’s charter’. In the circumstances, I suggest that you consider with your solicitor what other options might be available although be prepared for those to be very costly and complicated.
Q. Since my ex-wife and I split up three years ago, she has refused to allow me to take our daughter, Emily, on holiday abroad. This year, my new partner and I plan to go to Spain and I really want Emily to come with us. I have always had Emily to stay every other weekend without issue and I don’t understand why this is a problem. We have never had to apply to court and I am concerned about the cost of doing so but presumably, my ex-wife can just continue to refuse indefinitely. Please help.
A. I understand how frustrating this must be for you. As the Court has never been involved, there will be no residence order in force. With this being the case, neither parent should take the child abroad without the consent of the other. It is in fact a criminal offence to remove a child from England and Wales without the consent of both of the parents if they have parental responsibility, as in your case. Therefore, your wife should equally seek your agreement or obtain a Court Order if she wishes to take Emily abroad. By explaining this to her, she may become more receptive to your proposals.
If you cannot reach agreement, then you would need to apply to Court for a specific issue order. When applying to the Court, the Judge is asked to decide whether it is in the best interests of the child for the holiday to take place. In most circumstances, it is going to be reasonable for the child to have a holiday overseas with their mother or father and permission will therefore be granted. If there is a concern that a child may not be returned, safeguards can be put in place. These can include promises to bring the child back at a particular time on a specified day, a bond of a sum of money or a “mirror order” made in the country of travel to reflect the order to return. These safeguards will not be required in most cases but can be important considerations where the situation is complex.
It is however of course to be hoped that the two of you can agree and you should perhaps consider referring the matter to mediation so that you can each air your views with regard to the proposed holiday and hopefully come to an agreement.
Q. I am not on Twitter, but my husband and a friend of mine both are. She has told me that my husband has been saying inappropriate things about a woman he works with. I think he may be cheating on me and I therefore plan to divorce him. I will not tolerate this behaviour. If my friend prints off the flirtatious tweets for me is that enough to take to my solicitor?
A. I am of course sorry to hear about this. It is very upsetting to think that someone you trust is behaving in this way and that it is for all to see on a social networking site. Firstly, I suggest that you speak to your husband. There could be an innocent explanation behind this that can be discussed and resolved.
If that is not possible and you decide to issue divorce proceedings, then I have to advise you that it is unlikely that these tweets would be sufficient for you to establish adultery and therefore divorce your husband on that basis.
Under the law in this country, you must prove either through an actual admission or through sufficient circumstantial evidence that your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with them. It is not always easy to prove that without an admission and you will find that flirtatious tweeting alone is therefore unlikely to amount to adultery.
If however you both accept that your marriage is over, the likelihood is that an agreement can be reached between you to avoid any unnecessary acrimony. If the adulterous relationship is admitted to, then a divorce can be pursued on that basis and it is important to be aware that this is unlikely to have any effect at all on the finances or any issues concerning children.
If such an admission is not forthcoming and there is insufficient circumstantial evidence, then the alternative is to issue an unreasonable behaviour petition, which can involve citing the ‘inappropriate relationship’ with a third party. Either way it will generally be better for everyone involved to try to proceed in an agreed way if possible to avoid incurring unnecessary costs by engaging in what can become very drawn out and distressing proceedings. I suggest that you obtain legal advice from an experienced matrimonial solicitor to try to keep matters as amicable as possible.
Q. My wife and I separated 4 months ago and our children, Emily and Robert, live with her but see me every weekend. I am now in a relationship with a lady from work. We plan to move in together next month so I would like her to meet my children. I don’t think that my ex will be happy. Do I have to tell her?
Solicitors are regularly asked whether there are any rules concerning the introduction of new partners to their children. The answer is that there are not. Each case has to be thought about individually and consideration should be given not only to the situation and the background but also to how the child or children dealt with the breakdown of their parents’ relationship and how they will probably react to another change in their circumstances.
It is not our job as solicitors, nor even the job of the Court, to criticise a parent for moving on and starting a new relationship. It is however expected that he or she will be sensitive to that change and will prioritise the needs of the child when it comes to how they are informed and how it is communicated to the other parent. Similarly, it is expected that the other parent will do their utmost to be understanding and not to cause the child any extra distress by drawing them into potential disputes about any new partner.
As always, it is vital to be open and honest about this sort of change and I suggest, wherever possible, agreeing a plan with the other parent in advance. This is to try to keep the impact on your children, and the chances of bad feeling being generated between yourself and your wife, to a minimum. It is of course the case that separated parents are entitled to their privacy but it is by and large considered appropriate still for the other parent to be informed of the identity of the new partner and some information about them, along with details of how and when the child will be introduced to them.
We often see contact between a parent and their child or children disrupted when the start of a new relationship is communicated and then causes friction between the parents. Parents should really bear in mind that only if there is a clear cause for concern regarding the child’s reaction or serious concerns about the suitability of the new partner, then there might be justification for altering existing contact arrangements. The court’s overriding objective however will be to ensure that contact continues as before in order to keep the impact on the child or children to a minimum.
If you still have concerns about the arrangements for your children, it is always sensible to seek legal advice before committing to anything.
Q. How can I prevent my daughter from being unlawfully removed from this country by my ex husband or his extended family. Threats have been made by them and I am starting to panic.
A. This must be very worrying for you. Firstly, always ensure that you know your child’s passport number and keep it out of reach of the potential abductor(s).
For added security, I suggest that you hand and fingerprint your child (hand and fingerprint kits can be obtained from Reunite www.reunite.org.)
If the removal or abduction is real and imminent, you should attend your local police station and request an immediate port alert. You will need to provide the police with details of the potential abductor(s), the destination, the likely time of travel and port embarkation along with the history of where the child has lived and where the child is now. Details of the threat to abduct and the circumstances they were made in should be provided so keep a careful note of what your ex husband and/or his family are saying to you. You should take with you any Court Orders in place plus details of the airline and flight numbers if you become aware of these.
If the abduction or removal is not real and imminent, I suggest that you apply to your local County Court for a Prohibited Steps Order to prevent the removal of your child from the jurisdiction of England and Wales. Please be advised that the Prohibited Steps Order will only take effect once it has been served upon the potential abductor.
My advice would always be to contact a solicitor who has experience in the area of child abduction and removal from the jurisdiction once such a threat is made. I suggest that you ensure that the solicitor you instruct has specialist accreditation in this area.
Q. My grandson, Alan, is currently in the care of the Local Authority. The Local Authority have told me that they want a kinship assessment. Could you please explain what this means?
A. When a child is placed into the care of the Local Authority either by agreement with the parent(s) or by a Court Order, the Local Authority have a duty to consider reunification with the child’s primary carer or, in the alternative, to look for a long term replacement either within or outside of the family.
The Local Authority therefore has a duty to consider the children’s extended family as an alternative place for the child to reside either during the course of the proceedings or during the child’s minority. The appointed Social Worker will therefore contact members of the extended family and invite them to be assessed. This assessment is known as a kinship assessment.
If any members of the family are considered suitable to care for the child, they will be asked if they wish to make an application for residence, special guardianship or simply to care for the child during the course of the proceedings. If therefore you feel willing and able to assist with Alan’s care, I suggest you contact them.
It is always advisable to speak first to a specialist accredited public law children panel solicitor who can advise you about the assessment and represent you within any proceedings.
Q. My husband told me last week that he feels that our marriage is no longer working. I am aware that he is going to see a solicitor tomorrow to discuss, amongst other things, his belief that I should move out of our home. He says that our house is in his name alone but I am not sure. Even if it is, cannot believe that it is fair to expect me to move out after a 15 year marriage when I have nowhere to go. What should I do?
A. I am sorry to hear this. You are of course upset about the breakdown of your marriage already but to be told by your husband to leave your home is very hurtful. Please rest assured however, that you do not have to leave if you do not want to. Your husband can only force you to vacate the property if he obtains an occupation order which in most cases would mean that he has been harmed or is at risk of harm from you.
That said, it would of course be better for you to be aware of whether the property is in his sole name or is owned by you both jointly and to establish this, I suggest that you obtain the office copy entries for the property from the Land Registry which will clarify that. This attracts a small fee.
If the property is in joint names, then I imagine you will feel far more secure. If however you discover that the property is in your husband’s sole name, all is not lost. You still have a right of occupation as his wife and this can be protected if necessary by registering a form HR1 at the Land Registry. This sort of notice protects your right to occupy the property, at least until any divorce proceedings are concluded.
It is also worth being aware that an additional notice can be placed on the register by way of a form RX1, which alerts anyone inspecting the register of your potential interest in the property and ensures that, even if the HR1 is legitimately removed once the decree absolute is granted, your husband cannot deal with the property unless you also consent.
This means that potential purchasers and existing lenders are aware of your interest in the property. It is also of course then worth considering, probably with the help of a solicitor, what interest you have in the property as even if it is in your husband’s sole name, by virtue of your marriage, you are likely to have a beneficial interest in the equity.
Q. My wife and I divorced several months ago and I thought it was now all over and done with. I have however just received a letter from her solicitor asking that I complete a Form E. I’ve tried my best to fill it in but they are also asking for supporting documentation. I don’t know what this means! Please can you help.
A. I know how intimidating it can be when you first look at the Form E as it is a very lengthy document. If however you work through it logically and in order, it is probably not as confusing as it first seems.
The Form E is the standard form that the Court uses to establish what is fair and reasonable following the breakdown of your marriage. As it appears that she wishes to deal with matters amicably, it aims to provide all the information that your wife’s solicitor will need from not only you but also your spouse to be able to consider what settlement is likely to be appropriate.
The Form E clearly states at the beginning of each section the documents that are required to be attached. For your assistance, these are as follows:
Although it is not a requirement at this stage, it is also likely to be helpful to attach up to date details of any loans or credit cards you hold, particularly if you feel that they should be considered joint, so that they can be dealt with.
I suggest that you may wish to seek legal advice however at this juncture to ensure that you are completing everything correctly and to assist you in asking any questions that may be necessary in respect of your wife’s Form E once it is forthcoming.
Q. My wife has shocked me by issuing divorce proceedings on the basis of allegations of my “unreasonable behaviour”. I plan try and stop the proceedings because I dispute that the reason for our problems is my behaviour. If anything, she has been the one behaving badly because we have discovered that we are not able to have children. What do you suggest I do now?
A. As you will be aware from the paperwork you have received from the Court, you have 7 days following receipt of the papers to file an Acknowledgement of Service with the Court. This form requires you to confirm whether you intend to defend the proceedings themselves or any claim for costs. If it is your intention to defend the proceedings, you then have a further 21 days to file an Answer which is basically your defence and if you wish to, a Cross Petition confirming that you believe that your wife’s behaviour has caused the marital breakdown. If you decide to go down this route, it is complicated and I suggest that you seek the advice of a specialist family solicitor.
That said, I also wish to give you some additional advice because whilst I understand how upset and hurt you will have been to have received a petition which you deem to be unfair and unjustified, you need to try to think commercially and sensibly about your options.
You would probably be far better off trying to agree the way forward with your wife because defended divorce proceedings can be extremely unpleasant and the “loser” is probably still going to end up with a divorce but it will be after a vicious, bitter and very public contested hearing. You are also likely to be left with a large legal bill to pay.
I therefore urge you to take legal advice regarding your position before taking matters any further because if your marriage has irretrievably broken down, as you appear to accept, then you can proceed without necessarily being drawn into a long battle. You could see if it is possible to agree a divorce based provided your wife amends her petition to something more acceptable to you, or proceed on the basis of cross decrees with each of you divorcing the other and no admissions being made by either side. You could perhaps even suggest that your wife’s petition be withdrawn and a petition based on your allegations against your wife could be issued. In all cases it is generally a good idea in order to maintain the cooperation that you each agree to pay your own legal costs.
Remember that there are likely to be other things to concentrate on which are much more important, such as the finances and your future.
Q. When we finalised our divorce 6 months ago, my wife and I entered into a Consent Order which provided me with our home (as she could not afford the mortgage) and I agreed to pay her a lump sum of £150,000. I paid the first £100,000 at the time of the transfer and was given 12 months to raise the balance under the terms of the Order. Unfortunately, I have taken on much less work recently and I therefore cannot raise more than half of that sum. I do not imagine that things will improve anytime soon. I have asked my ex wife to take the £25,000 and call it quits but she refuses. What am I supposed to do? I cannot magic another £25,000 out of thin air! She should be happy with what she can get.
A. I sympathise with your position. Such difficulties are becoming common place due to the financial problems with the economy in general. However, you cannot simply refuse to give your wife the full lump sum to which she is entitled under the terms of an agreed and approved Consent Order. You are highly unlikely to have grounds to change the amount owing. That said, you may have grounds to seek a longer period of time over which to make the payment and you should therefore speak to a solicitor about making an application to vary the timing of the payments. This will then hopefully give you sufficient opportunity to raise the sum initially ordered.
Please be aware that if you cannot pay the amount ordered by the deadline specified and do not apply to vary the instalments in good time, then you could end up liable for interest on the lump sum outstanding. If no interest rate is specified in the order, as is often the case, then the debt will automatically carry interest at the judgement rate of 8% until payment is made. This is a punitive rate and would result in you owing a great deal more than originally envisaged. Please therefore act promptly.
Q. I met an old girlfriend a few months ago on Facebook and have been seeing her behind my wife’s back ever since. I plan to tell my wife soon as I would like to get divorced as quickly as possible. My ex girlfriend and I plan to marry as soon as we can. Presumably the easiest way would be to use my adultery. Is there anything to stop me doing that and how long will it take as we are already planning our wedding for this Christmas?
A. Unfortunately, you cannot apply for a divorce based upon your own adultery! Either your wife would need to agree to issue a petition based upon your adultery being the reason for the breakdown of your marriage or you would have to proceed by other means. In your case, given that you have not been separated for two or more years, you would need to explore whether your wife’s behaviour during the marriage would give sufficient grounds. I would only suggest this if an agreed way forward cannot be found.
With regard to timescales, there is no fixed answer. On average, the divorce procedure takes 4 to 5 months from start to finish, partly because there is a compulsory waiting period of 6 weeks between the decree nisi and the decree absolute. How long a divorce takes exactly does also depend on the speed with which third parties (the Court and your wife) deal with their respective parts.
If you have to issue and your wife does not respond to the divorce proceedings, this can cause additional delay because it is necessary to prove that she has received the divorce petition before matters can proceed. It may therefore be necessary for you to arrange to have a copy of the petition served on your wife personally.
You should also be aware that sometimes, one of the parties to the divorce asks that the other side does not apply for decree nisi to be made absolute until financial matters have been settled, which of course can often take much longer to deal with. This is not always appropriate and there have to be particular circumstances present to justify it. Where this applies it can delay the time it takes to obtain decree absolute and my advice would be to ensure that financial matters are therefore raised early on and that an agreement in reached as soon as possible. For this, it is always advisable to seek legal advice.
Q. My ex-wife and I divorced 18 months ago and since then, I have been paying her £750 each month as spousal maintenance under the terms of the Order we agreed. I believe that my ex-wife’s new partner has now moved in. Can I therefore stop paying the maintenance? I am aware that he earns well himself and I am very unhappy at the thought of providing extra money to them.
A. I understand your frustration but there is unfortunately no automaticprovision under English law for maintenance to end because of cohabitation, unless of course the Court order expressly says it must. Very few orders do so because it would require the wife’s consent.
You should be aware that the law does not equate remarriage with cohabitation. Upon remarriage, maintenance payments cease automatically. Therefore there needs to be a review of all the circumstances of your case and if your ex-wife was not agreeable to the maintenance stopping or being reduced, you would have to refer the matter back to the Court. You will have to persuade the Court that cohabitation is taking place and that it should be taken into account. The Court will then make an assessment on all those facts and in the recent case of Grey v Grey, it was clarified that it will not be a question of what the new partner is contributing but what he ought to be contributing.
I therefore suggest that you consider the matter carefully, with the assistance of a solicitor, before taking action.
Q. My wife has issued divorce proceedings against me. Is there anything I can do to stop them? We have only been married for a short time and I still love her.
A. It is rarely possible to stop divorce proceedings on this basis. The fact that your wife has taken this step is a clear indicator of a serious breakdown in your marriage. You can suggest that she either withdraw or put a hold on the proceedings, to allow you to talk, obtain counselling and try to rebuild your relationship.
If she refuses, the only other option is for you to defend the divorce proceedings. If you wish to defend the proceedings then you will need to file the Acknowledgement of Service confirming that within 8 days of receipt of the divorce papers and give your reasons for your belief that the marriage has not broken down irretrievably on the grounds she has given. However the Court rarely agrees that a divorce cannot be obtained where one party is determined to do so and it may therefore be preferable to reach a compromise. This may involve you agreeing that the marriage has broken down but not the reason your wife has given or agreeing the costs of the case should be borne equally to reach a compromise rather than both of you attending a fully contested hearing which is likely to be costly, time consuming and emotionally draining.
Q. My son and daughter-in-law have recently divorced and it has been far from amicable. As such, despite the heavy involvement that my husband and I used to have in caring for our 2 granddaughters, Lily and Ella, we now very rarely get to see them. Can we apply for a Court order?
A. Making an application to the Court is not always the best option because your grandchildren could be drawn into another battle. The way to consider the situation is that the Court consider all such problems from the child's perspective and are bound to consider the child's welfare as “paramount”.
If you do wish to apply for contact with a grandchild, you must first apply to the court for "leave" to be heard which is effectively a decision being made as to whether you should be given permission to make an application for contact. As a grandparent, you are not automatically entitled to make a court application in relation to your grandchild. The court will consider the family circumstances and the role that you have in that family. In your case, the court is likely to look favourably upon the fact that you used to frequently assist with childcare.
Once leave is obtained, the court will consider the practicalities. It will take into account the children's wishes and feelings, as well as their established routine. It is worth remembering that the court considers it best for children to know their extended family, so that they can understand their background and place in the world. Courts tend however to prefer to make provision for children to see their grandparents within existing contact arrangements if possible and therefore, if your son is having contact then you could see the children during that time. If he is not and is therefore planning to make an application to the Court himself then it could be that you should simply apply to be joined to that application rather than starting a new set of proceedings.
It would therefore be sensible for you to seek independent legal advice; sooner rather than later if the Court is already involved.
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:
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:
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:
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.
For details, see Nelsons Solicitors