Frequently asked questions - Divorce and family-Q&A
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I cannot see that there will be any significant differences in the pension sharing order between you divorcing now or after you retire. The reason for this is that a court would have little difficulty in accepting the certainty of your retirement and you receiving your pension.
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I am afraid that there can be no simple and straightforward answer to this as it will be necessary to consider all the surrounding circumstances. A couple of principles whether however apply. The first is of course that a husband is not responsible for his wife's debts. The other principle is that on divorce the court will have an almost absolute discretion which it will exercise in accordance with the principles laid down in the Matrimonial Causes Act.
The starting point in dividing matrimonial assets and liabilities may well be 50 /50 but there will be so many other things which could affect the distribution that I would really need to know much more before being able to give an opinion. Unfortunatly however the debts which your brother's wife has run up during the marriage are matrimonial liabilities which will have to be repaid from the matrimonial assets.
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The situation you have been left in is quite unacceptable and of course your husband must pay maintenance to you in order that you meet your liabilities and maintain yourself. The decision you must make is whether or not there is any prospect now of the marriage continuing and you getting back with your husband. If the answer is no it will sadly be best if you issue divorce proceedings forthwith and claim maintenance in those. A maintenance order is most likely to be made but probably only for a limited number of years until you are able to get back on your feet. The alternative is to apply to your local Family Proceedings (Magistrates) Court for a maintenance order within the marriage.
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There are a number of issues here. Firstly your husband's inheritance. Providing he became beneficially entitled to the legacy during your marriage this will be a family asset for division between you.
You are entitled to see a copy of the will and should approach the executors for information as to whether your children have inherited.
It would seem that there is a dispute concerning the children which will have to be resolved by the court if you and your husband are unable to reach agreement.
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I am uncertain from your e-mail whether or not you are divorced or planning to divorce. The problem which has arisen is one that needs to be dealt with in a final divorce settlement. Both you and your wife need to move on with your lives and it would of course be quite ridiculous for you to continue paying a mortgage on the house where your wife is living with another man. In addition, in all probability you will have capital tied up in the home which needs to be dealt with.
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It is most unlikely that an appeal from a final order in matrimonial proceedings will be possible. However if your financial circumstances have changed since the order was made, it will be possible to apply for a variation of the maintenance order. The procedure is set out on our website or you may wish for further guidance under our free advice service.
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The short answer to this problem is that your former wife should not have been allowed to conceal assets, and the fact that she managed to do so can only rest at the door of the solicitor who was acting for you. It is quite ridiculous to suggest that the court would sort this out as on the system we have a decision can only be made on the evidence presented to the court.
The other worrying thing from what you say is the amount of the legal costs you have paid for sorting out what does not appear to be a particularly large amount of money in matrimonial assets. It does not make sense to incur legal costs of 21k when the amount in dispute is not significantly more.
That said, I'm not sure what if anything you should do now. This has nothing to do with the Proceeds of Crime Act unless your wife is into money laundering, all though it is possible that she might be guilty of perjury.
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There is no legal form as such and it sounds as if what you should do is write to him giving notice that unless he removes any items belonging to him within 14 days, you will consider them abandoned and dispose of them.
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This sounds a lot happier than most divorce situations and I am glad for you both. The last thing which the court will want to do is cause any unnecessary difficulties.
What needs to be done is to make a joint application to the court for the ancillary relief proceedings to be either dismissed or stayed. You and your wife should be aware that if dismissed, fresh ancillary proceedings could not be brought as decree absolute has now been pronounced.
The application will need to be supported by a statement of evidence from you both which need only say that you are considering getting back together and remarrying and some detail of where you are both living etc. it is most probable then that the Court will then agree to knock the Ancillary Proceedings on the head without any need for attendance by either of you.
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I am afraid that the answer to your question is no on both accounts. You must remember that when you took out your mortgage it was you and you alone that undertook to the mortgage lender to make the payments and the fact that you now have a husband living with you in the house does not make him liable to the lender.
Although I obviously know very little about your matrimonial affairs it would not on the face of it seem sensible for you to move out. If however you decide to do so you should certainly first reach some agreement with your husband (possibly in a formal separation agreement) that he will voluntarily make the mortgage payments. However the most sensible course here if the marriage has irretrievably broken down is for you to get on with the divorce and as part of the divorce action resolve all financial issues between you and your husband.
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You have every right to have the property sold on the open market at the best possible price. However matters may not be as simple as this as clearly to sell, your husband would have to agree, and if he will not do so there could be difficulties forcing him whilst you are still married.
I think you have to look at the broader picture. Is this or is this not a marriage which has irretrievably broken down. If it is, is there any purpose in keeping the empty shell alive. If not then it would be sensible now to resolve not only the house but all financial issues surrounding the marriage and obtain a final and binding order in divorce proceedings.
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I am afraid that this is not as simple as it may appear. If you are to transfer your share of the house to your husband, you must make absolutely sure that when you do so you are released from any obligations under the mortgage and that the lender can not come back on you for any payments that are not made. What would normally happen is that when one party to a jointly owned property which is to buy out the other, that person will apply to the mortgage lender for them to release the other which they will do only if the acquiring party meets their financial criteria. Unfortunately in this case it does not seem that there is any prospect of this happening and you being released.
Thus to take the worst possible situation which could develop (as can happen especially when people move on and take new partners) you would be liable for the mortgage and any payments not made without having any interest of claim on the house. You would also be prevented from taking out a new mortgage to buy another property by your liability under the existing mortgage.
I am not saying that there is not an answer to what you are proposing but it is going to involve an awful lot of trust and most certainly a carefully written separation agreement to record the position.
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A gift is a gift. Title to the item passes when the gift is made. Ownership is no different from if the item had been bought by yourself from a shop.
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I can well understand how frustrating this must be. It would seem a little unusual that your husband's former wife received not only the matrimonial home but also an order for very significant maintenance.
As you will know maintenance orders can be varied and it would certainly appear that the former wife's circumstances changed when she sold the home. This will provide good grounds for an application to vary and this should certainly be made. The court will only be able to vary and not extinguish the maintenance although this could of course be to a nominal amount of 01p a year.
I would be inclined at this stage to keep your powder dry so far as a proposal to pay her a lump sum. Make your application for a downward variation which will result in her having to file a statement of her financial means. When you know what these are it could well be negotiating time with her. Let me know if I can help further.
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You are. The house is the matrimonial home and the sale proceeds must be divided up in accordance with the usual principles.
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Providing a person is able to read and write and with intelligence about moron level there is no need to instruct a firm of solicitors in order to obtain a consent order in matrimonial proceedings. All that is required is to ensure that the application follows the proper procedure, is correctly drafted and that the order required deals with all financial matters arising from the marriage.
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The needs of your children are that they should be housed and where possible remain in their home in familiar surroundings to reduce any disturbance at this difficult time. You must also have maintenance for them (and yourself) and a sufficient share of savings and other family assets to provide a home for the children.
The obvious solution here would be for a sale of the matrimonial home to be postponed until the children leave full-time education. Thus the other assets would be divided on a more or less than 50-50 basis and your husband would have to wait for his share of the home. Fortunately he has sufficient income to provide alternative accommodation for himself in the meantime.
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I have to say that I am shocked by what you have been told by the Citizens Advice Bureau. You have a most definite right to maintenance from your husband whilst you remain married to him and it is nothing short of scandalous that he is not paying this whilst you are having to live on benefits.
You should apply for maintenance without delay. If you intend to stay married and not divorce, an application should be made to your local Family Proceedings Court. You should however consider at this time whether, as seems apparent, that if the marriage is dead you might well be better off making a claim for financial provision as part of divorce proceedings.
A:
The starting point for the division of matrimonial assets on divorce is 50/50. There are a number of factors which will vary this distribution, such as the need to provide a home for children, the need to provide maintenance or housing for an incapacitated spouse and to an extent inequal contribution to the matrimonial assets.
From what you tell me I cannot identify anything which would lead to a variation from an equal split. There are no children, you are both relatively young and professional people able to rebuild your lives and maintain yourselves independently. The only relevant factors are that although you have obvious earning capacity, it may well be that your earnings are insufficient for a number of years. You also contributed your inheritance to the marriage in purchasing the home.
The settlement that would therefore appear proper on the limited information I have would be an equal division of all assets including the house and the value of your husband's pension and for your husband to pay maintenance to you of an appropriate amount for a limited period of say three years.
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If only because of the violence towards you, you have grounds for divorce on the basis of unreasonable behaviour. However the law is such that you cannot petition for divorce until you have been married for 12 months. It would be possible to obtain a judicial separation but this rarely carries any advantages.
This being the case unfortunately it will not be possible to finalise the financial implications of the marriage at the present time. However it may be useful for me to give an opinion on the likely financial orders which could be made on divorce. With such a short marriage it is extremely unlikely that providing your husband has the ability to maintain himself any orders would be made relating to your house and I do not consider that he could maintain any claim against it.
The link you have with him brought about by the second charge over your property is worrying. It would be much better if you could pay this off by borrowing from a commercial lender. You may wish to either give me further information about this loan, alternatively if you would prefer, telephone me on the number below.
There is then the question of maintenance for you and your daughter. With such a short marriage, there are very significant advantages to a clean break settlement, and ongoing maintenance for you is unlikely. Your daughter however is a child of the family will which maintenance could well be appropriate. Whether this is likely will depend upon the detail.
Finally, although you cannot divorce now, there are advantages in entering into a separation agreement which would give some certainty to the position. This would only be possible however with cooperation from him.
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I shall not be able to give you a definitive opinion on the proper distribution of your parent’s matrimonial assets without knowledge of the value of the two properties and any other matrimonial assets, but am happy to set out a few guidelines on how this should be decided.
As a preliminary point I would ask what purpose there is in them divorcing. Presumably there is nobody else involved and neither would intend to remarry. In these circumstances it could be more appropriate for them to enter into a separation agreement and based on this simply live apart. I note that your mother has a low income and as a married woman could well be advised to retain the rights a married woman has for amongst other things maintenance from her husband. This can however be a complex area which will depend upon the detail of your mother’s position. Generally speaking however a woman of your mother’s age is better off within a marriage.
The starting point on divorce is to lump each and every matrimonial assets into one pot and then divide it on a 50/50 basis. This distribution can be varied by a number of factors such as young children and housing needs which do not apply here. It must be all but certain that your mother would remain living in her home but the question would be whether she would receive the property outright or a life interest. This would depend upon the value of the Italian property and whether it is available as a home for your father.
The main matter for concern must be your mother’s income and whether it is possible to take her above subsistence allowance. The answer to this would append upon whether there are assets available for her maintenance, and whether your father has disposable income or assets to maintain her.
I do not think that I can usefully say much more without further information. My advice here is to consider very carefully the advantages of a separation agreement, and to do this with one eye on inheritance.
A:
Things are clearly quite unsatisfactory at the moment. Although doubtless your partner had the best intentions at the time, it would have been better to have made the agreement subject to a consent order which would have included provision for your partners entitlement to a share of the matrimonial home and to enable him to get on with his new life free from the shackles of this marriage.
The way forward must be for him to file notice of an intention to proceed with the claim for ancillary relief contained in the divorce petition. This need not be daunting or expensive, and we can help by either providing a DIY kit or assisting you with the process. It may well be that you would like to discuss matters with me on the telephone and if so please do not hesitate to get in touch on the number below.
A:
The redundancy payment received by your wife is a matrimonial asset and as such goes into the ‘ pot ‘ for distribution on divorce.
When following marriage breakdown it seems likely that a party will dissipate assets under their control in order to defeat a claim arising from the marriage the court is able to make an order freezing that asset. Thus on application to the court showing good cause your wife’s post office account could be frozen. However such an application is unnecessary where there are other assets which can be taken into account. Thus if you have a house and your wife without reason dissipates her Bank account, her entitlement from the house will be adjusted accordingly.
A:
This does not sound like a very happy situation. The house is the matrimonial home and as such you have very considerable rights with regard to it. Most of these however would only come into effect on divorce or the marriage being dissolved. During the subsistence of the marriage your only right is to occupation of the house under the Matrimonial Homes Act. Were there to be a divorce however it is fairly irrelevant whose name the matrimonial home is in, as the court has the power to vary property entitlements. You have a child who I presume is a child of the family and who must be housed as a top priority. It would therefore be most likely that on divorce an order would be made that you remain in the property until such time as your child completes full-time education and at that stage, the property be sold and divided between you and your husband. You will appreciate that without knowing more detail and without knowledge of all family assets and income it is only possible for me to give rough advice on this, but that would be the general direction a court would take.
I am not sure that the will which your husband intends to make provides proper provision for you and your child. If that is indeed the case you would have a legal right to apply to the court under the Inheritance (Provision for Family And Dependants) Act for a fair and proper distribution of your husband's estate.
A:
It is ridiculous for a divorce to have gone on for so long without being resolved. It is equally wrong that you have been forced to live on benefits if there is money available from your husband for the maintenance of you and the children.
Before I am able to advise you of what needs to be done, I shall need to know the current position. What if any orders have been made by the court, and what stage have the proceedings reached? Are you living in the UK property? Is your husband working and where is he living now?
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The question of the legal status of a separation agreement has been a problem for a number of years and especially now as they are more widely used and accepted as something that should be encouraged. The problem is that the court has almost unlimited power on divorce which cannot be fettered. Thus on an application by one party for financial relief, the court can make more or less any order it likes and need not be bound by the terms of a separation agreement. However what was agreed by the parties at the time of separation and recorded in a separation agreement will be highly persuasive to the court.
That said I am surprised that you are looking at a separation agreement. You are not separating, you are divorcing. In these circumstances it would be preferable for you to prepare an application for an order by consent which would enable the court to make a final consent order disposing of all the financial issues between you and your husband. This is quite straightforward.
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The court does have power to order a capital sum and then discharge the maintenance Order. The court will still consider all the circumstances of that case in deciding whether this is just a justifiable. In this case it is probable that you would be awarded a share, but usually there would be some reluctance to order such a share years after a divorce.
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The court will consider all of the circumstances of the marriage. So if you have lived together, had children, and bought a house together before you got married this will be taken into consideration.
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It is well established that if the Court made an Order based upon incorrect information provided by a party then that Order can be set aside and a new Order made on the true position to incorporate a penal measure to demonstrate the Courts disapproval.
If you have evidence to show that your former husband had assets which were not disclosed you should certainly apply for the financial Order to be set aside. My suspicion would be that your former husband would immediately negotiate a better settlement rather than risk a finding of misleading the court which is not only perjury and a criminal offence but also misconduct which would need to be reported to his professional body.
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It is not possible to petition for divorce during the first 12 months of a marriage. Your friend should however apply to the Court for protection from the violence she is suffering and also for financial provision by way of a maintenance order. We will be happy to assist with these applications if instructed by her
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I am afraid that you must accept that whilst you are married no legal action to make your husband agree a sale is possible. The policy of the courts is not to interfere in such domestic matters between married couples. Should you decide however that the marriage has irretrievably broken down and decide to divorce the situation is entirely different. It is quite probable that as part of the divorce settlement a sale would be ordered alongside such orders as to enable you financially to get on with an independent life.
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Providing that you claimed financial relief in your divorce petition and have not remarried it is possible to now proceed. However the Court will frown upon such a delay. You will undoubtedly have to pay your own costs of making the application and whether it would be worth while I can not say without further information. You must remember that you will be asking the court to vary something which you had previously agreed and this will go against the principle of certainty following divorce proceedings so that people can thereafter plan their financial affairs
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You are a little premature as the Court can not make Ancillary Financial Orders until decree nisi. At this stage you can apply for an order by consent if all is agreed which will take effect on the making of decree absolute.
The order you propose is quite possible and can either be incorporated in the final order or kept as a private arrangement. I do not think that it matters much either way. If incorporated in the order it will be legally binding on you both and if not (which on further reflection could be simpler) you will simply need to register your interest in her property at HM Land Registry. Which ever way you go what is proposed seems entirely in accordance with principles and would be applauded by the Courts.
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There are 2 separate issues here. If an interim charging order has been made a judgment against you for the remortgage shortfall must have been made. Whilst there is an unsatisfied judgment against you the judgment creditor is entitled to a charge over any property you own and there can be no defence in the usual course to having the Order made absolute. Obtaining an order for sale of the charged property is however an entirely different matter.
It would seem that although you are the registered owner of half of the property probably as a Tenant in Common, you have agreed to hold that half (save as to £5k) on trust for your partner. I believe that this would persuade a Court not to Order a sale but not prevent them from making a final charging Order. This would however only be a charge over your interest in the property which you can show to be limited to £5k.
The answer here is really investigation into the judgment entered. Your course of action could well be to apply for the judgment to be set aside and ask for the charging order hearing to be adjourned pending the outcome of the application.
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You should clearly be applying for a maintenance order if your husband is failing to support you. His girlfriend’s income will be considered as an available resource when the court considers how much maintenance he should pay you. If you need help making the application or more information let us know or consult our website
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The draft consent order should include words to the effect that your former wife will use her best endeavours to release you from the mortgage, loan is secured on the property and debts and then indemnify you against any claims by these lenders.
With regard to your questions:
1. If I sign this consent order then she fails with Abbey to Basically have the mortgage in her name would I still be indemnified? You would remain liable to the Abbey who would claim against you if the mortgage is not paid. Your liability for this mortgage could affect your ability to take out a new mortgage and although you have an indemnity you are still liable. Failure by your wife to pay would affect your credit rating although you would probably not be concerned if the house was repossessed.
2. If I sign the Consent order and she fails with Abbey to basically have the mortgage in her name, is it possible for my name to still be removed from the deeds? If this is achieved and my name removed from the deeds then I assume i would have no legal rights over the property. No. You can only rely upon her to take on sole liability for the mortgage
3. Can you explain what Liberty to Apply means? This is permission of the court to take the matter back for a further hearing if problems arise over implementation of the order
4. Would you recommend that she applies to current lender to try and apply for a change of borrower? before I sign the Consent Order? Yes
5. If I dont sign it, and She fails the process with the Abbey, What happens then....would it go before a court to decide? Yes
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Although made by consent this is still very much an order of the court and your former wife disobeys it at her peril. You may apply back to court for enforcement with a penal notice attached but my advice is to go further than this and apply to the court for a variation of the breached order along the lines of you having the car.
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It seems that unfortunately you did not ask the court to make a financial order in the terms agreed with your then wife before decree absolute was granted. Had you done so, the agreement then reached would have been legally binding and the windfall increase in value irrelevant. Without such an agreement however the position is that as a joint owners she has an entitlement to half of the equity whatever amount that might be.
That is the simple position. Possibly-and I would need to see all the divorce papers first-it might not be too late for you to apply to the court in the divorce proceedings for a property adjustment order which would allow the court to vary the interests in the property if it was equitable to do so. It is also possible that an action could be based upon your former wife’s promise to accept the agreed share.
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I am sure that you are feeling absolutely devastated and desperate, but action is called for. Firstly you have a right to be maintained by your husband whether you are living together or not. You should apply to the Family Proceedings Court for maintenance without delay. If you need help with this let me know.
Secondly it is unlikely that you would be required to sell your home at least until your youngest child has finished full-time education. I would need much more information before being able to advise you fully but after such a long marriage you would almost certainly be entitled to half of the assets plus continuing maintenance from your husband.
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You and your brother are going to have to be very careful. I would not advise that you provide a house for your brother or even let it be known that you are prepared to assist him until his divorce is finalised
If the marriage is at an end it is usually far more satisfactory to have it laid to rest by way of divorce after which a clean break settlement can be made by the court meaning that your brother's financial affairs is his own and there can be no further claim by his wife. Whilst they are married she would be able to make a claim on any property in which he has an interest and it is largely irrelevant that they are separated.
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I am afraid that your question only gives me one half of the equation. Before being able to give any sort of advice, I will need to know something about the needs of your wife and yourself after you retire. The dividing up of property on divorce does not just depend upon what is in the pot and available for distribution but also the needs of the spouses after the divorce.
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I am not going to suggest that this is not a situation to give concern and certainly this new property should be in joint names. However divorce is not the problem. On divorce the ownership of all family assets can be divided up by the court and it is fairly irrelevant in whose name they are held. What would give me cause for concern is what would happen in the event of the death of either yourself or your husband. With jointly owned property the house will pass automatically to the surviving spouse but when this is not the case there can be problems and nasty surprises in a will with extended families by the intestacy provisions. Needs sorting.
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It should not happen after all these years but I still become mildly infuriated when I read e-mails such as yours. Unless I have completely got the wrong end of the stick what you are trying to do is apply for a downward variation of a maintenance order on the basis that your financial circumstances have changed since the original order was made and you can no longer afford the payments ordered. This is not rocket science. It happens everyday in every court of the land and is an absolutely straightforward application on straightforward principles which every lawyer should understand. Where my anger flows from is where it is made to sound difficult and confusing and expensive to justify an exorbitant fee, I get even angrier when bum advice is given (and probably charged for at circa £175 an hour). Of course your cohabitee’s financial position is relevant if this is a resource available to you.
Having got that off my chest I will turn to your specific questions. Before answering however I am going to say this. You can not afford to pay legal costs-be they £6000 or even a realistic or sensible amount. Also it is not right that your partner should pay them and nobody-especially a Court-would expect her to do so. This leaves you with the only option of making the application yourself. I am presuming that you are not brain damaged and of at least average mental ability. Providing that is the case, there is no reason in the world why you should not do so.
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There are basically 2 criteria for legal aid. The one financial and the other that the matter falls into a category where public finding is held as justified because of (amongst others) the seriousness or difficulty of the matter.
If you care to go to the Legal Services Commission website you can check yourself whether you meet the financial criteria. However I suspect that this will be largely irrelevant. You are seeking to enforce a maintenance order and this does not qualify for legal aid. It is something which you can quite easily do yourself.
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Your husband has inherited from his late mother’s estate during the subsistence of the marriage and the legacy will therefore become a matrimonial asset which will fall into the ‘pot’ for division in divorce proceedings. Should the risk of him disposing of this legacy-or putting it outside of the reach of the Court be more than hot air you should seriously consider seeking an order freezing the asset until such time as a divorce court can decide on the proper division of assets.
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I am afraid that none of the circumstances you mention would play any significant part in deciding the division the matrimonial assets if you should divorce. Thus any adultory by your wife is totally irrelevant and the fact that you have paid the mortgage is unlikely to affect the division.
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A court order will continue until varied either by the court or the agreement of the parties. Unfortunately therefore the settlement ordered back in 1997 will still have affect all though your former husband has breached the requirement to pay periodical payments.
It is unfortunate that you did not make an application to the court as soon as he stopped making payments. In all probability the court would have varied the order as it would have seemed that there was little prospect of him complying with the periodical payments order. Such an application is still possible but the circumstances you have now will not be in your favor. It is more likely that an order would be made along the lines of the maintenance arrears being deducted from his share.
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afraid that an inheritance received during the marriage is indeed a matrimonial asset which will be taken into consideration on deciding the division of property on divorce. That is not however to say that your husband would be entitled to your inheritance as this will depend upon all relevant factors.
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The first question with regard to sorting this out is whether or not your marriage can continue. I would not wish to push you towards divorce but you must appreciate that this is the only way that you can obtain any restitution of the monies she has taken. If you are to remain unmarried you must take your wife as you find her. Should you divorce this is the sort of conduct on her behalf which is likely to affect the financial settlement.
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I am afraid that by so many legal questions and in particular those relating to matrimonial circumstances there is no straightforward answer. The division of matrimonial assets is not an exact science. Your entitlement to a share of this pension will depend upon many things and in particular the other matrimonial assets and your needs after the divorce.
That said, the starting point will be a 50/50 split this may well be varied in accordance with the factors which a court is required to consider under the Matrimonial Causes Act.
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The answer to this is that if whilst married, your husband transfers his share of the property to you, stamp duty will be payable on the value of the interest transferred. However if the transfer is made following an order of the court made in divorce proceedings, no stamp duty is chargeable.
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If you are at your wife able to agree all matters between you, it is quite possible for you to prepare the necessary formal order incorporating the agreed matters yourselves and present this to the court for approval.
Two things to remember. Any agreement between you and your wife is not binding until subject to an order of the court. Also that the mortgage lender is going to happen to agree to the proposal.
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In divorce proceedings, the court has an almost unfettered discretion to make orders and consider the financial position of the parties following the divorce. The ability of your husband to apply for an order is therefore not affected by the fact that you have been separated for a lengthy period, and should he make an application this must be considered by the court
When considering the orders to be made on an application by a party, the court will consider all the circumstances. The lengthy separation is then highly relevant as is the fact that you acquired your property by your own efforts and have brought up your daughter with out assistance from your husband. I consider that in these circumstances it would be unthinkable for any award to be made whereby your estranged husband would obtain any part of your inheritance or property or indeed anything else.
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In divorce proceedings, the court has an almost unfettered discretion to make orders and consider the financial position of the parties following the divorce. The ability of your husband to apply for an order is therefore not affected by the fact that you have been separated for a lengthy period, and should he make an application this must be considered by the court
When considering the orders to be made on an application by a party, the court will consider all the circumstances. The lengthy separation is then highly relevant as is the fact that you acquired your property by your own efforts and have brought up your daughter with out assistance from your husband. I consider that in these circumstances it would be unthinkable for any award to be made whereby your estranged husband would obtain any part of your inheritance or property or indeed anything else.
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If you are at your wife able to agree all matters between you, it is quite possible for you to prepare the necessary formal order incorporating the agreed matters yourselves and present this to the court for approval.
Two things to remember. Any agreement between you and your wife is not binding until subject to an order of the court. Also that the mortgage lender is going to happen to agree to the proposal.
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I am afraid that by so many legal questions and in particular those relating to matrimonial circumstances there is no straightforward answer. The division of matrimonial assets is not an exact science. Your entitlement to a share of this pension will depend upon many things and in particular the other matrimonial assets and your needs after the divorce.
That said, the starting point will be a 50/50 split this may well be varied in accordance with the factors which a court is required to consider under the Matrimonial Causes Act.
Change Name Q&A (1)
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You will not be able to change the entry on your birth certificate without paying the appropriate fee. However my understanding is that the passport office would be able to issue you with a passport in the name on your birth certificate but with reference to the name which you use. Check with the passport office who may require you to execute a simple change of name deed.
Divorce-Q&A (26)
A:
Although the facts may indeed be a little unusual, unlike so many other divorce situations, and thanks to the good sense of you and your wife, this is neither an unhappy or difficult situation. It should be resolved by you and your wife over a good glass of wine and with out spending unnecessary money. It is not the role of the law to place obstacles in the way of mature people without young children who wish simply to change the status of their relationship.
It would seem to be common ground between you and your wife that the marriage has irretrievably broken down, that the marriage is an empty shell, and that it should be dissolved without acrimony. All therefore that needs to be done is for you to decide who is to divorce who. This makes little difference. When that decision has been made, I have no doubt that in a friendly and amiable manner you can sit down together and put together unreasonable behaviour particulars sufficient to satisfy the legal requirement of grounds for the irretrievable breakdown. I can help with these without difficulty if required and would take you through all the procedural steps to have the marriage dissolved.
You do not mention the financial matters and I anticipate that happily you and your wife will have decided these between yourselves.
A:
It will be necessary for your partner to include with his petition for divorce an application to dispense with service upon his wife. This application must contain a statement showing the efforts which have been taken to establish her whereabouts. This may include contact with all known relatives and possibly an advertisement in a newspaper circulating in the area where she last lived.
A:
There is no particular problem here. It would appear that both you and your wife live and are domiciled in the UK, and will therefore come under the jurisdiction of the UK courts. As such you may petition for divorce in the UK and it is quite irrelevant that the marriage took place overseas.
A:
I am so sorry to hear of your marriage experience. It may sound difficult and complex to extract yourself from this situation,but in reality it is not. What you must do is look separately at each aspect of the problem.
The first issue is to jurisdiction, and to which Court in which country you must apply. You say that you now reside in the UK. In itself this is not necessarily enough to give the UK courts jurisdiction to dissolve the marriage. For them to do so you must have UK domicile. This is a fixed intention to live and remain in the UK. I suspect that as a British passport holder you will have this, and I would not envisage any jurisdiction problems in making an application to what would be any UK County Court with divorce jurisdiction.
The next issue is grounds to present a nullity petition, and very clearly you have this as the marriage was not consumated.
The third and final barrier is service of the petition, with you not knowing where your husband now lives. What you will have to do is advertise the
issue of your nullity petition in a newspaper covering the area you most likely believe he is living. Not knowing where he lives is not a bar to
obtaining a decree, it is only necessary for you to
show the court that you have done everything possible to bring the petition to his notice.
A:
I am afraid that some District Judges can be particularly awkward, and once a matter becomes bogged down like has happened with you, it can be difficult as you have found to extricate it.
The answer is most probably to amend your petition. I suspect that by now you and your wife will have lived in separate households for more than two years. Providing this is the case your petition should be amended to show the new dates and the two years of separation. You will need to apply for leave but this should be given without difficulty. In your application ask for service to be dispensed with. If you need a hand preparing the application and amended petition, let me know.
A:
What you say and what you intend is absolutely right and as it should be. When you are considering the position keep quite separate in your mind the divorce which simply dissolves the marriage and finalising financial matters between yourself and your husband which are referred to as 'ancillary relief'
The divorce side is absolutely straightforward. It is really simply a paperwork exercise. As far as ancillary matters are concerned, what you and your husband are proposing is the obvious and clearly fair settlement between two people who have brought up children together and then decided to live separate lives.
With regard to the specific questions you ask:
1. Yes you should. The usual thing is to simply ask for the whole lot. This is not a hostile move against your husband, but if you do not make the application for ancillary financial relief, the court will not be able at a later date to make a consent order.
2. Yes, the court does not have power to make a consent order until after decree nisi. The application must be made before decree absolute. There is absolutely no reason why you cannot do this yourself as the procedure is straightforward and again in your case where everything is agreed, simply a paperwork exercise. I hope our ancillary relief kit will adequately explain the procedure. Having applied and you and your husband having provided basic financial information, the papers will simply be put before a district judge at the County Court together with a draft consent order which you must draw up and the order will be made.
The other thing you should bear in mind is that it is your marriage, your money, your house, etc. The policy of the court is not to intervene in these matters which concern only you and your husband. A court would only refuse to make a consent order when it was obviously unfair and there was a possibility of one party suffering from undue influence or the like, or in circumstances where divorcing parents had not made proper arrangements for minor children. Clearly none of this applies to you and there can be no possibility whatsoever of the court refusing a consent order in the terms you propose.
A:
Most unfortunately there is very little that you can do. Certainly there is no action which you can take to make your wife divorce you other than trying to persuade her. If you were to file a divorce petition it would have to be on the grounds of your wife's adultery or her unreasonable behaviour which would not appear to be available. If she will not consent to a divorce after two years separation there is I am afraid no alternative other than to wait for five years when consent is not required.
It is not open to you to apply for a judicial separation as the above grounds would still have to be shown and the only real difference is that it is not necessary to plead that the marriage has irretrievably broken down.
If your wife is quite determined to make you wait for five years from the date of separation it could well be sensible to discuss with her a separation agreement to deal with property ownership and financial matters until the time of the divorce.
It will only be necessary to prove the date of separation if this is disputed by your wife on presentation of the divorce petition.
A:
Possibly if it is decided that your stepdaughter has been treated and maintained by you as a child of the family and cared for her as your own. There will however also be an obligation on the natural father to maintain her which should be pursued.
A:
No it is not. So long as the debts are only in your husband's name you have no responsibility for them. If however the debts are on a joint bank account or taken out in joint names then you would be liable with him.
A:
Adultery by itself is insufficient to base a petition for divorce. The petitioner must find the adultery intolerable and there is probably an argument in this case that as they were separated she would not find it intolerable for him to find a new partner. The fact that they were separated will not however change this from being adultery as although separated they were still married. There are no financial implications to admitting adultery and the grounds on which a petition are based will have no relevance in usual circumstances to the ancillary financial settlement
A:
The grounds for divorce and particulars of unreasonable behaviour contained in a divorce petition are totally irrelevant when deciding financial matters. It is well-established that conduct plays no part in deciding ancillary financial matters and cannot even be raised and put before a judge if it comes to having to ask the court to decide financial issues. It is unfortunate that the petition issued by your wife should contain controversial matters but this really will not affect the outcome. You need therefore not have any concerns about consenting to the divorce which you both require.
What I suggest that you do is write back to the solicitor instructed by your wife saying that you do not to agree with the allegations but will allow the petition to proceed on an undefended basis providing they agree not to proceed with the claim for costs in the petition. This is quite usual and I am sure they will agree. By agreeing to the divorce you are only consenting to the marriage being dissolved. The question of any maintenance payments is quite separate. In being aware of your inability to pay maintenance I am sure that your wife will not proceed with this claim.
A:
You are only obliged to make a payment for the costs of the divorce action if you were ordered to do so by the court. It would seem that your former husband in his divorce petition did not make a claim for costs and therefore he can not now require you to make a contribution.
A:
Providing that you have an address for this Brazilian lady there should be no particular problems. The important thing is service of the divorce papers on her as it is a basic rule that parties should know whether or not they are married.
Your Partner is entitled to issue a divorce petition based upon five years separation. The other parties consent is not required. Therefore if you are able to establish service of the petition upon her in Brazil the lady need play no further part than and the marriage will be dissolved with out difficulty. This will of course involve you in the expense of employing a process server in Brazil to serve the petition and provide a sworn affidavit of service.
A:
The practicalities of a marriage breakdown often result in this situation which is not uncommon. I see no reason why the fact that you are still living under the same roof with your wife should have any effect on the only concern for the court which is whether the marriage has irretrievably broken down and that one of the five ' facts ' exist to establish this. The answer is therefore no, but do let me know if I can help further.
A:
I suspect that it will be the case that your boyfriend’s marriage has irretrievably broken down. If he is able to establish this on the basis of her behaviour or adultery then he will be entitled to a divorce which is not conditional upon his wife's agreement. He must however be in a position to prove service of the petition upon her.
A:
Firstly let me deal with the question of divorce. If you have reached the decision that the marriage has irretrievably broken down, I have no doubt that you will be able to evidence this by the emotional abuse you have suffered as unreasonable behaviour by your husband. The DIY Divorce Kit contains all that is needed to bring a divorce action and there is much free information on our website which explains the process.
Matters concerning children are decided by what is in the child's best interest. It would be usual for a child of tender years such as in your case to live with the mother. I can see no reason why this should not happen here
A:
A judicial separation is possible within the first year of marriage, but as it does not actually dissolve the marriage most people do not bother and tend to wait until they can divorce after one year. Tghat would be my advice to you unless thgere are any particular reasons why you feel that tgere should be a formalsettlement. You can claim maintenance without issuing either a divorce or judicial seperation petition.
A:
No problem with filing a divorce petition in the UK providing you and your spouse live and are domiciled here. The UK courts will have jurisdiction
A:
If your husband has not submitted any objections to your claim for costs, then it is highly likely that the judge will agree your claim and will reward you the costs of the divorce proceedings. The issue of costs is highly unlikely to delay the grant of your decree nisi and it would be quite unthinkable for this to happen because of the omission of your husband. Under the special procedure when a certificate of entitlement to a decree has been issued, it is not possible to oppose the actual pronouncement of the decree.
A:
You cannot file for divorce until you have been married for a year. There is nothing however to stop you separating at once, and you should consider either filing for judicial separation or entering together into the separation agreement.
A:
Absolutely! Providing everything is straightforward there is no reason why it should cost you much more than the Court fee which is currently £180. However bear in mind that getting divorced is only part of the story. Very often the legal fees are incurred not in arranging the divorce but in sorting out ancillary matters such as finances, ownership of property, and sometimes arrangements for children.
A:
Not if everything is straightforward and you are prepared to agree to be divorced. However matters may be different if there are disputes over children or money.
A:
A realistic estimate of the time between filing the petition and pronouncement of decree nisi would-be six weeks. You must then wait a further six weeks before you can apply for the decree to be made absent.
A:
The process in the UK to dissolve a marriage which has irretrievably broken down is quite straightforward where both parties agree that there should be a divorce. As in Finland it is a requirement that both parents consider the arrangements for children.
You are now resident in the UK and may therefore apply to a UK court for a divorce. You will need to provide your Finnish marriage certificate with an official translation. It is unfortunate that your husband will not discuss matters but this is not a barrier to you obtaining a divorce and indeed such orders as may be necessary to deal with finances and matters concerning your daughter.
A:
The process in the UK to dissolve a marriage which has irretrievably broken down is quite straightforward where both parties agree that there should be a divorce. As in Finland it is a requirement that both parents consider the arrangements for children.
You are now resident in the UK and may therefore apply to a UK court for a divorce. You will need to provide your Finnish marriage certificate with an official translation. It is unfortunate that your husband will not discuss matters but this is not a barrier to you obtaining a divorce and indeed such orders as may be necessary to deal with finances and matters concerning your daughter.
A:
You should ask yourself whether there is any prospect of you living again with your husband in harmony. If the answer is no it is best to grasp the nettle now and divorce. This will enable all the matters you are concerned about to be resolved. Although separation may seem a simpler solution in effect it is not as whilst married there will always be uncertainty and the financial obligations of married couples to each other will continue notwithstanding the separation.
Cohabitees-Q&A (40)
A:
I am afraid that one of the worries about what has happened is that you are almost entirely at the mercy of your former boyfriend with regards to him paying the mortgage. That is why it is going to be unsatisfactory long term for you to be financially linked with him if the relationship is over. What that means is that you will have to either acquire his share in the property or get it sold. A possibility here could be for a friend or somebody else to come in with you to help payment of the mortgage.
I appreciate that there could well be penalties payable if you sell and repay the mortgage early
There are no easy solutions.
A:
Only if he gets a court order to say that you must. You would be able to oppose this as you both have a legal duty to house the children and the prime consideration of the court will be to how this can best be done. The court would wish to consider all the circumstances and what money is available to house the children. Although the property may be registered in your partner's name, you should consider whether you are able to claim a share in it, for example by having contributed to the mortgage or with work on the house.
A:
No she can not. However if you refuse your consent she would be entitled to an order from the court that you sell. This would involve legal costs and increased animosity between you both. Try to agree a time limit for the sale, and if you are to stay in the house tried to agree that you pay her some ' rent ' in respect of her share.
A:
This is a terribly sad situation and it pains me to have to say that the law as it stands at the moment is unable to assist as you were not married. The situation would be entirely different if you had been married.
With cohabitees it is property law rather than needs or entitlements which govern who owns what. There can be little doubt that he owns the house and the fact that you contributed to its maintenance and living expenses has absolutely no relevance unless he agreed that you would take a share in payment. Similarly his violence towards you has no relevance to the proprietary interests. I think you will also know that he has no maintenance obligation towards you.
The only possibility would be if you are able to establish that he had let you to believe that you would have a share of the property or his other assets and that you relied upon that promise and changed your position because of it.
A:
The short answer to your question is No- your partner would have no claim against your house. The position would change however should you marry. The only exception to this is that your partner would on your death be able to make a claim in appropriate circumstances under the Inheritance (Provision for Family and Dependants) Act. However as she already owns a house and is presumably of fairly independent means and not financially dependent upon you, such a claim would be unlikely to have any basis.
In making your will, you should include a clause explaining why you have not made any financial provision for your partner, and as a wish to leave your estate to your children is quite normal and proper, there should be no difficulty.
A:
I am afraid that there is one thing, and one thing only that you can do in this situation. That is to immediately issue court proceedings. Experience has shown over the years that in this sort of situation promises to repay debts are simply not kept. The claim you should make will include your costs in obtaining a replacement passport.
The position concerning your former partner's mother could be more difficult. Is she really insolvent or just saying that? Would she be able to read pay the money spent on your catalogue if you get judgment against her? If she is really insolvent it would be a waste of your time bringing proceedings against her, but otherwise you should do so.
Providing the amount you are owed is under £5,000, your claim will be dealt with under the small claims track at your local County Court. The procedure is fairly straightforward.
A:
Your position and the position of your daughter are very different.
The fact of your separation does not affect the responsibility of your former partner for his daughter. This responsibility extends so far as it is financially viable to him providing a roof over her head. As the principal carer for your daughter, such would also provide housing for you.
Unfortunately as you were not married, the law as it stands at the moment places no obligation on him to provide maintenance or indeed housing for yourself. In all but exceptional cases, a court can not vary the ownership of property as it can do when there is a divorce. Therefore it is all but certain that your entitlement in the house is 50% of the equity. If your former partner decides that he wants the house to be sold in order that he might take his share, he would have little difficulty in obtaining such an order on application to the court.
The ideal solution would come from discussion and agreement with him if that is at all possible. If you were to agree not to claim maintenance for your daughter, he might agree to let you stay in the house for at least the time being. Is there are enough equity in the house to make it worth while you buying a smaller property with him making a contribution. There are any number of possibilities but much will depend on some good will from him.
A:
The house where you have lived with your partner for the past seven years is owned by you and you are presumably registered as the beneficial owner at HM Land Registry. This simple fact is not affected by the fact that you have cohabited during your period of ownership, although the position would be entirely different had you married. The consequence of this is that in all but a few exceptional circumstances, your partner will have no claim on the property. The fact that he has paid the usual utility charges and living expenses is quite irrelevant.
A:
I do not think it will be any condolence but your problem is very far from unique. First as to the lender of the money. I think that you will appreciate that the loan would have been joint and several which means that in effect you are liable to the lender for the full amount if your former boyfriend does not pay.
The position between yourself and your former fiancee is governed completely by what was agreed between you at the time you took out the loan. Very often in such circumstances little if any thing is agreed over and above that you will pay the instalments together. If more was agreed there is the problem of evidence and proving it.
If you were able to show all on a balance of probabilities that you had an agreement with your fiancee that he would pay half you could then take action through the Courts to enforce this agreement. In an ideal world you would at that time have written out an agreement to that effect and if you had done so there would be no problem now. However I fully appreciate that this hardly seems necessary or appropriate when people are engaged and intending to stay together.
You have a right of action against him but for it to succeed you are going to have to satisfy a court that you entered into an agreement with him that he should pay half. Ask yourself very seriously whether you can do this
A:
Only if he gets a court order to say that you must. You would be able to oppose this as you both have a legal duty to house the children and the prime consideration of the court will be to how this can best be done. The court would wish to consider all the circumstances and what money is available to house the children. Although the property may be registered in your partner's name, you should consider whether you are able to claim a share in it, for example by having contributed to the mortgage or with work on the house.
A:
If you were not married your former partner has no duty to maintain you but as the father of your children he must provide maintenance for them. The Child Support Agency will decide how much maintenance he should pay and will arrange to collect regular payments from him and then pass them on to you. Had you been married you would have been entitled to ask the court to make an order that he pay maintenance for you.
A:
How sensible you are.
What your situation absolutely screams out for is a prenuptial (or pre-marriage) agreement. You have obviously poured a lot of time and money into the house and you are absolutely right in requiring some security for that. At the moment you have nothing.
Prenuptial agreements are not the most romantic of things to discuss but they can be very necessary if future arguments and disputes are to be avoided. What goes into them is of course solely up to the parties but generally they will deal with the financial position and entitlements on marriage. Another advantage of them is that they should sound warning bells if a future partner to a marriage refuses to discuss and agree the situation.
A:
I am not sure that your partner has got the position absolutely right concerning ownership of his house. Why I say this is that it is virtually impossible and highly unlikely for someone to be liable for a mortgage over a property they do not own. Thus were he to give away his share of the property, it would be a requirement that he be released from the mortgage. The only likely exception would be if he provided a guarantee to the lender, but then primary responsibility for repayments would be on the borrower.
What you say about him giving away his share when the state of his mind was confused is most worrying and there can be legal remedies in this situation.
A:
I do not think it will be any condolence but your problem is very far from unique. First as to the lender of the money. I think that you will appreciate that the loan would have been joint and several which means that in effect you are liable to the lender for the full amount if your former boyfriend does not pay.
The position between yourself and your former fiancee is governed completely by what was agreed between you at the time you took out the loan. Very often in such circumstances little if any thing is agreed over and above that you will pay the instalments together. If more was agreed there is the problem of evidence and proving it.
If you were able to show all on a balance of probabilities that you had an agreement with your fiancee that he would pay half you could then take action through the Courts to enforce this agreement. In an ideal world you would at that time have written out an agreement to that effect and if you had done so there would be no problem now. However I fully appreciate that this hardly seems necessary or appropriate when people are engaged and intending to stay together.
You have a right of action against him but for it to succeed you are going to have to satisfy a court that you entered into an agreement with him that he should pay half. Ask yourself very seriously whether you can do this, and if so and you would like further help please do not hesitate to come back to me.
A:
Should you and your partner decide to live separately this will have no effect on the ownership of the house. If the property is held jointly it may well have to be sold in order that each might take their share unless an agreement can be reached for one party to buy out the other. If it is owned solely by yourself, that position is not effected and your partner will have no claim on the property.
There is no rule or presumption that children stay with the mother although with young children this may be more usual. The only deciding matters are what is in the children’s best interest and where it is best for them to live. The law on this is further explained on our website.
A:
How sensible you are. What your situation absolutely screams out for is a prenuptial (or pre-marriage) agreement. You have obviously poured a lot of time and money into the house and you are absolutely right in requiring some security for that. At the moment you have nothing.
Prenuptial agreements are not the most romantic of things to discuss but they can be very necessary if future arguments and disputes are to be avoided. What goes into them is of course solely up to the parties but generally they will deal with the financial position and entitlements on marriage. Another advantage of them is that they should sound warning bells if a future partner to a marriage refuses to discuss and agree the situation.
A:
This is a sad matter but unfortunately the law as it now stands gives cohabitees few rights on the breakdown of a relationship. Unfortunately I can not identify any claims you may have against him in the absence of a formal cohabitation agreement entered into when you got together.
A:
Sorry to hear of your problems and I only wish that I could give you better news than what the position must be. Unfortunately I do not think that you have any claim against the house. Paying a share of the mortgage and household bills certainly does not entitle you to a share in a property. This situation would have been entirely different had you married but even the relatively long period of cohabitation here does not affect property rights.
A:
If an Order has been made by the Court it will be necessary to make an application to the Court for the Order to be cancelled. If the Order was made on false information provided under oath this lady has committed perjury and if proved could well result in her imprisonment.
A:
I think you are well rid of this guy. What he is doing is bordering on harassment.
There is absolutely no legal basis for him to claim back what was clearly intended as a gift. If a person makes a gift, title in it passes at the time the gift was made. Thus the ownership of the gift is not affected by any change in circumstances. There is nothing here to suggest that the gift was conditional on any matters, and therefore the fact that you have split up does not in any way affect what he gave you when you were together.
You can quite safely ignore his threats and were he to make a claim against you, this would be likely to be thrown out of court at an early stage. If you have any more trouble from him I would suggest speaking to the police
A:
There are a couple of possibilities here. One is that this solicitor knows nothing about equitable interests and how they are acquired and the other is that they are trying to mislead and frighten you. What is however quite certain is that your former girlfriend has not acquired any interest, equitable or otherwise, in your flat simply by living there for a while. You can be 100% certain of that.
A:
What you say is absolutely right and very sensible of you. Indeed if you were to split up, in the absence of any agreement to the contrary, you would have absolutely no claim on the house. Compare this with the situation were you married when you would be probably entitled to a half share.
Over the years the courts have been inundated with claims from women in very similar if not identical circumstances to yours. Many of these cases have held that a contribution by way of carrying out work on the home or paying household expenses gives rise to what is known as a resulting trust which gives an interest in the property. I say this is a matter of interest as the last thing you must do is to allow yourself to get in anything like that position.
A cohabitation agreement would certainly help, but like any agreement it is what goes into it that matters. I imagine you are thinking along the lines of a clause saying that if you part he will pay you X thousand pounds or a percentage of the house. Both have problems with enforcement which is always the difficulty when a parting is acrimonious. Remember that a percentage of a house is valueless until that house is sold.
The only real way round this is for the cohabitation agreement to provide for trusts and provision on how you are to get paid if you split up. Your position can be secured by a cohabitation agreement and the only problem is whether he would agree the terms.
A:
Unlike the situation where parties are married, the position with cohabitees is that on breakdown of the relationship the parties have no claim on assets owned by the other. Thus your former partner will have no claim whatsoever against the property you own. There is no maintenance obligation and no entitlement to any compensation for matters arising as a consequence of the cohabitation.
A:
I am afraid that despite the length of your cohabitation, your rights against the property owned by your partner are very limited. As you are not married it is only in cases where a cohabitee was led to believe that she had an interest a property and reliant upon this promise acted to the detriment that an interest will be awarded. Otherwise the fact that the property is shown as owned by your partner is conclusive.
Your partner does have an obligation to maintain your child and this will extend to providing a home. Should he try to throw you out without making proper provision there are remedies available from the court.
A:
A person would not obtain any rights or claims to your property simply by living in it with you. However if you are or intend to cohabit it is sensible to regulate the position by way of a cohabitation agreement. We have one available for download from our website.
A:
It would sound as if the relationship is at an end and I shall answer this on the basis that long term remedies are required.
Custody is a concept not now applicable. Your brother in law should apply to the court for a parental responsibility order which would be given without difficulty and which would give him equal legal rights over his child to the mother.
A decision is then needed as to where he is to live and where he will see his child. This is likely to require a sale of their jointly owned property and if it is no longer required as a home for them both he may call for an order for sale.
In the meantime as a joint owner he certainly has the right to enter and remain at the property and she certainly has no right to exclude him
A:
If this property is vested in your name alone, then your former partner can have no claim upon it simply by virtue of having lived in it and cohabited with you.
A:
Cohabitation is very different from marriage and the relationship does not give any rights to property of the other when dissolved. I hope that the following satisfactorily answers your questions but do come back to us if you need any further help
Please could you advise me on;
- My rights re the sale of the property.Will it be spilt 50/50. Yes
- Has my partner any rights on my financial savings , in my personal bank account. No
- Have I any rights upon her savings , should she have any No
- Has my partner any rights on my company ( I'm self employed) vehicle ( a van ) No
- If I was to leave the property do I forfeit any rights. Unlikely but I would not advise it. If you no longer need the property as a home you have the right to sell which can not be resisted by your partner.
A:
These items were stored at your former partner's property with his consent and on the implied term that you could remove them at any time. You therefore have an absolute right to collect them. My advice is to write a formal letter advising of a date and time when you intend to call and collect them and advising that if he does not release them you will consider them unlawfully retained and make an application to the court for payment of their value plus damages.
A:
I gather from what you say that this property is owned jointly by yourself and your former partner subject to a mortgage and in equal shares. Unfortunately when joint owners are not married the court is not able to vary the beneficial interests and the strict legal position is not affected when one party makes the repayments on the joint mortgage.
The position therefore is that unless there was agreement between you to the contrary, your entitlement is to one half of the equity in the property. You are entitled to have the property sold in order that you might take your share and if necessary you may apply to the court for an order for sale.
A:
Talk about shutting the stable door. What you should have done is drawn up a cohabitation agreement which would have dealt with ownership of the jointly acquired assets and liabilities should your relationship come to an end.
The legal position all depends upon intention when the asset or liability was acquired and this can be often difficult to ascertain. In the absence of any thing more concrete the presumption will be a 50/50 split. The fact that a particular asset or debt is in one parties name is not conclusive if it can be shown that the true intention was for it to be shared.
Do not even think about going to the law over this. With regard to low value items, furniture and the like just walk round the house with him and decide who is going to have what on a fairly equal basis. With other items just work out the value and divide it down the middle.
A:
So far as the liability to the gas supplier is concerned you certainly are responsible for payment of this account as you remain liable under the agreement for supply. However your former partner entered into a completely separate agreement with you under which he was to indemnify you against this bill. He has breached that agreement and you have every entitlement to bring court proceedings against him on his promise. Sadly however this will not be possible and indeed pointless if he has been declared bankrupt.
A:
You are quite right in that strictly you need to tell your mortgage lender who may require some sort of undertaking from your partner agreeing that he has no right of occupation or claim against the property. So far as Council tax is involved you will now have no entitlement to a 25% rebate for single occupation.
As the law now stands your partner will not obtain any rights over your house is simply by way of occupation. You should however give very serious consideration to entering into a cohabitation agreement. A good agreement (like the one available for download from our site, obviously) is near essential to avoid future difficulties and will recite that contribution to household expenses by your partner will not give rise to any rights over the property.
A:
This is all going to depend upon whether your girlfriend has any proprietary interest in the home. She will not require an interest in the usual course of events simply by reason of your cohabitation but should she be a joint owner or a joint tenant with you then she will have an equal right of occupation.
A:
I am afraid that the simple fact is that bailiffs have little regard for the law and will say just about anything to obtain money and their fees. Firstly refuse them any entry and do not let them into your house. Secondly contact the local authority. I suspect that hey will have obtained a liability order against you-possibly without your knowledge. If they will not agree to having this set aside advise that they you will apply to the magistrates court for this and ask them to agree to withhold bailiff action until then.
You may then need to come back to us for further advice if not resolved. Just do not let the bailiffs in-they have no power to force entry-and do not be intimidated by them.
A:
What you say is absolutely right and very sensible of you. Indeed if you were to split up, in the absence of any agreement to the contrary, you would have absolutely no claim on the house. Compare this with the situation were you married when you would be probably entitled to a half share.
Over the years the courts have been inundated with claims from women in very similar if not identical circumstances to yours. Many of these cases have held that a contribution by way of carrying out work on the home or paying household expenses gives rise to what is known as a resulting trust which gives an interest in the property. I say this is a matter of interest as the last thing you must do is to allow yourself to get in anything like that position.
A cohabitation agreement would certainly help, but like any agreement it is what goes into it that matters. I imagine you are thinking along the lines of a clause saying that if you part he will pay you X thousand pounds or a percentage of the house. Both have problems with enforcement which is always the difficulty when a parting is acrimonious. Remember that a percentage of a house is valueless until that house is sold.
The only real way round this is for the cohabitation agreement to provide for trusts and provision on how you are to get paid if you split up. Your position can be secured by a cohabitation agreement and the only problem is whether he would agree the terms.
A:
The legal position is very different from that had you been married, and it is probably this difference which is confusing your former partner and what she's being told.
On the presumption that your house is held jointly in equal shares as is usual, that is your entitlement-half the equity. Unlike in divorce a court has no power to vary the entitlements to property. You and your former partner hold the house on what is known as trusts for sale. The consequence of this is that if one joint owner wishes for the property to be sold -- there must be a sale and the net proceeds of sale will be divided equally. The fact that your partner has a dependent child is totally irrelevant, allthough it coule persuade a court to delay an order for sale.
You have no legal right to buy her a share if she is not prepared to sell it to you. However it would make good sense for her to do so as providing you can agree the valuation, estate agent and other costs of sale will be avoided. If you were to buy her share you would of course have to persuade the mortgage lender to either release her from the mortgage or (as they often insist) for you to take out a new mortgage.
A:
You are absolutely correct in that you and your partner are each entitled to half of the equity in the property. As you are not married the situation is governed purely by the registered beneficial interests in the property. Unfortunately the effect of this is that should the joint owner of your property wish to take her share, she is entitled to do so and on application to the court it is likely that an order for sale would be made.
I am afraid therefore that the answer to your question is that if she demands her share of the property now, there may be little you can do other than to sell the property. It could of course be that you are able to persuade her to leave her money in the property until the children are of age and if so a suitable agreement should be drawn up.
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I am afraid that your situation again shows the difference between married and unmarried couples and provision for children when a relationship breaks down. Although the father is certainly obliged to provide maintenance, I am afraid that there is no obligation on him to provide a home for your daughter.
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You are absolutely correct in that you and your partner are each entitled to half of the equity in the property. As you are not married the situation is governed purely by the registered beneficial interests in the property. Unfortunately the effect of this is that should the joint owner of your property wish to take her share, she is entitled to do so and on application to the court it is likely that an order for sale would be made.
I am afraid therefore that the answer to your question is that if she demands her share of the property now, there may be little you can do other than to sell the property. It could of course be that you are able to persuade her to leave her money in the property until the children are of age and if so a suitable agreement should be drawn up.
A:
As I see it is, you and your partner are splitting up. You own two properties together presumably in equal shares as tenants in common. When two people own property together and are not married the law will only intervene to order a sale of the property in order that the parties might take their shares. If as I suspect this will not really be the answer here, everything else must be decided by negotiation and preferably then set out in a legally binding written agreement. Where this is not possible your only course is to obtain an order for sale and get both properties sold. The costs of sale are also to be decided by agreement but would normally be 50/50.
The way to keep your costs down is to be reasonable but firm. Put to him what you propose clearly and try to get this agreed. If that is possible let us know and we will put together a binding agreement for you at a cost which will not break the bank. If agreement is not possible come back to me and I will be happy to advise the other
A:
I am afraid that in all probability you have no alternative other than to pay the amount required by Nationwide to avoid repossession of your property. Liability for the loan will be joint and several and if your former partner does not pay then you must. The Nationwide will have little interestin your difficult with your partner and unfortunately it is for you to sort these out.
If it is not possible to persuade him to accept his responsibility then court action against him could be the only remedy available.
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There is nothing which your partner can do to stop you severing the joint tenancy. You need only serve notice of this intention upon him although evidence of service should be obtained
You can apply to the Court for an Order for sale of the jointly owned house which will be granted as of right. This will be a Part 7 application.
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Your entitlements to shares in the jointly owned property will be in accordance with the agreement signed when you purchased. If you require the property to be sold in order that you might take your share then an order for sale can be obtained from the court. If this is not what is required by you, it will be necessary to come to some agreement with your partner. This is possibly a case where family mediation could help.
A:
Let me first put your mind and your sister’s mind at rest over the house. It is your sister’s home, the home of the children, and over and above that jointly owned. There is absolutely no way in which her husband can make her move out of her home at this time.
That said there are obviously many other problems which need to be sorted. The first question in dealing with this matter is whether the marriage is over and if this is a divorce situation. If so permanent issues such as ownership of the house, distribution of other assets and maintenance for herself and the children need to be resolved. Wherever possible this is best done by agreement, but your sister will need to consider her entitlement. I am a little reluctant to advise her to change the locks without a full discussion on the situation but he should certainly be put on notice that she is now in sole possession of the house and that he may not enter without her permission.
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No she can not. However if you refuse your consent she would be entitled to an order from the court that you sell. This would involve legal costs and increased animosity between you both. Try to agree a time limit for the sale, and if you are to stay in the house tried to agree that you pay her some ' rent ' in respect of her share.
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I am presuming that as the mortgage is joint, you will hold title to the property as joint owners. I can see no reason why you should give away your half interest in this property and certainly cannot be forced to do so.
Whilst you remain an owner it is unlikely that the mortgage lender would agree to release you from the mortgage. The real situation here is that you are being asked to part with your entitlement to a half of the equity in the property and you should certainly not do so
A:
You and the mortgage broker are both correct. You are presumably registered as a joint owner of the property at HM Land Registry and any subsequent mortgage of the property can not effect this. However with jointly owned property such as yours, before lending money secured on the property any lender will require a charge over the property in their favour to be given by both owners. Thus if only your boyfriend entered into the mortgage the lender could not easily repossess the property if he defaulted as you had not entered into the mortgage and agreed the mortgage conditions. Thus they will not lend just to one of two joint owners and like it not you are going to have to put your name either to the mortgage or to a deed giving up your rights in favour of the mortgage lender. I would not advise you to do this.
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Your daughter's former partner would not be able to sell the property without either the agreement of your daughter or an order for sale from the court. Unfortunately were he to apply to the court for an order for sale, the court would be likely to take the view that an order for sale should be granted, as the purpose for which the property was bought being to provide a home for the two of them, has come to an end.
There are however always exceptions to this rule, and there might also be the possibility of your daughter purchasing her former boyfriend's interest.
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The answer to your question of whether you can force your former boyfriend to sell your jointly own house is a clear and definite Yes. Quite clearly the house you bought together is no longer needed as a home for the two of you and as such you are entitled to an order for sale from the court if your former boyfriend refuses to agree a sale.
A:
I am afraid that what you are proposing will not be possible without the consent of the mortgage lender. You and your ex will need to approach the lender and seek their consent to your release from the mortgage. This is likely to be agreed if your ex can show that she is able to pay the mortgage without your contribution.
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On the presumption that you own this house equally with your boyfriend then your entitlement will be a 50% of the equity in the property. You will only be entitled to differing shares if this was the agreed beforehand in consideration of the one equal contributions to the acquisition of the property.
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I am afraid that you are in a difficult position. Legal ownership of your property is joint and you will not be able to sell, remortgage or make any dealings with the property without the consent of your co-owner. Furthermore, as matters stand at present, this person is entitled to half of the equity in the property notwithstanding the fact that you have paid the mortgage and deposit.
It is essential that you now trace this person and try to resolve matters. If the person will not agree to relinquish their share in your favour it may be necessary to apply to the court in order that the true intentions on purchase can be determined. This has to be a last resort however and the starting point for you is tracing this person and discussion.
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The answer to your question of whether you can force your former boyfriend to sell your jointly own house is a clear and definite Yes. Quite clearly the house you bought together is no longer needed as a home for the two of you and as such you are entitled to an order for sale from the court if your former boyfriend refuses to agree a sale.
A:
When people divorce it is usually best for them to agree all the financial matters. However sometimes that does not work out and it is necessary to involve the courts. This seems to be the position here. Your mum should apply to the court for an Order that the house be sold and if your dad does not co-operate your mum will be able to deal with the sale.
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This property is in your sole name and this is conclusive save where the circumstances are extraordinary and where for special reasons a jointly owned property was put in a single name. I can see no suggestion of this here. He has no claim on your property.
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The rights concerning this property will depend upon the beneficial interests in the house. In all probability the property is owned in equal shares between the parties and they will therefore be entitled to half the equity on sale.
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The first stage here must be investigation and to find out exactly what has been going on. This will require a search against the property at HM Land Registry which should show the shares in the property and if properly registered have copies of any documents signed by your sister. A pending action should probably also be registered to prevent her former partner dealing in the property. If it can then be shown that she signed without being aware of its nature and if this did not recite her true intention when signing, an application to the court can be made to rectify the position.
A:
There are only two ways in which you can be released from this mortgage. The one is if the mortgage lender agrees and the other is if the mortgage is paid off. That said there is more to your situation than perhaps you realise.
Three years or so ago you purchased this flat with your then boyfriend and took out a mortgage. I appreciate that you have not lived in the flat for a long time and have not made any recent mortgage payments. However that does not change the legal position which is that you own half of this property. You have a legal entitlement to this half share and to have the flat sold (and obviously the mortgage repaid) in order that you might receive this money. In other words you are in a very strong position and your former boyfriend is extremely stupid to cause you all these problems.
The first thing is for you to decide whether or not you wish to claim your entitlement to the flat. If you do it could well be a case for your former boyfriend to take out a new mortgage in order to pay off the existing mortgage and pay you your share of the property. This is what usually happens when cohabitees who bought a property together split up. If he will not do this it is simply a case of applying to the court for an order that the property be sold. You would get this for the asking.
Whether or not the mortgage lender would release you from the mortgage depends entirely on whether they are happy that your ex can pay the mortgage by himself. At the moment if he does not pay they can come on you and to release you from this they are going to have to be very satisfied about him.
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When property is held as tenants in common, each party will hold an individual share of the beneficial interest in the property. This can be declared as any percentage by way of a trust deed declaring the shares held by each tenant in common.
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Your partner will remain liable to the mortgage lender and it is not open to him to simply say he is not going to make any further payments.
As a joint owner of the property it is open to him to apply to the court for an order that the property be sold. However if a sale is opposed by you and your parents it is extremely unlikely that this application will be a successful especially if you still need the property yourself as a home.
My advice is to make him an offer for his interest in the property.
A:
There is no harm in doing what you propose but it will not guarantee that a claim will not be made by a trustee in bankruptcy against the share in the property now owned by your husband. If he is able to show that the only reason for the transfer was to avoid a claim by your husband's creditors then the transfer could be undone.
A:
The contents. This is jointly owned if purchased by you jointly and with an intention that it should be for the benefit of the two of you. As such it obviously belongs to both and should not be sold or disposed of without you both agreeing. In a split up situation it is clearly quite impractical to divide everything down the middle and many items will not be suitable for sale. The sensible course is to get together, list everything, and agree a 50.50 division. It is unfortunate she has not done this and she is quite out of line. You have two options. Claim what is left as your share or make an issue of it and take the excess value of what she has taken from her share of the house.
The mortgage. Categorically no as she is legally bound by the covenants for payment to the lender. However as you will realise you will be jointly and severally liable for the mortgage repayments and if you do not pay, apart from the risk of repossession, your name is going to be blacklisted which will not help if you want to take out a new mortgage on another house. It would be possible for you to obtain an order against her requiring her to pay but enforcement could be difficult and you would be put to trouble and expense. Use this display of unreasonableness by her to your advantage.
Your offer. You and she presently hold the house jointly on trust for each other by way of a trust for sale. The prime meaning of this is that if one joint owner requires a sale, then the property must be sold. This is agreed between you and presents no problem. However implied terms of the trust for sale are that the property must be sold as soon as practicably possible and for the best price realisable.
The position as I see it now is that the property has been on the market but not found a purchaser. It must now be sold almost by way of a ' fire sale ' and she will no longer pay her share of the mortgage. The best, if not only, available offer is yours. Any court would order a sale of her interest to you providing you can come up with evidence to show that the price you are offering is reasonable and the best available at the present time.
My advice to you would be not to let the situation deteriorate further and make an immediate application to the court for a sale. This would not be as difficult or expensive as you might suspect and if you want to go down this route let me know
A:
You have said it all. You bought a property with your boyfriend-it is registered in joint names-and it will therefore be owned jointly with you owning half and him owning the other half. Who paid the deposit, survey fees and everything else including mortgage repayments is all totally irrelevant. The property is owned in equal shares by the two of you. It is not like a divorce settlement where the court can vary beneficial interests-between cohabitees they stand in accordance with the legal interest.
Tell him that he must either pay you for your share-half the equity-or you will call for the property to be sold, which you are absolutely entitled to do.
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Your daughter can only be released from her obligations under this mortgage with the agreement of the mortgage lender. This is extremely unlikely to be given after such a short period especially if the lender was not prepared to give a mortgage solely in her former boyfriend’s name.
Fortunately she does have the security of being a joint owner of the property and can call for its sale at any time. There is likely to be a heavy penalty if the property is sold now and obtaining a written agreement to postpone the sale and for the boyfriend to formally agreed to indemnify her against the mortgage should be considered.
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Your obligations to the mortgage lender and responsibilities for payment of the mortgage are unaffected by the breakdown of your relationship with your joint owner and the fact that you no longer live at the property. Should your former boyfriend not pay the mortgage you are responsible for payment and your credit rating and ability to obtain another mortgage will be affected if you do not do so.
In the circumstances which you describe of your former partner refusing to pay all of the mortgage, there is no alternative other than for you to require the property to be sold so that the mortgage can be redeemed and you released from your obligations. You have the right to call for an order for sale and you should do so without further delay. We have a package to assist available for download from our website and can offer you further assistance if required.
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If at the moment you hold the property as joint tenants; severing this joint tenancy so that you hold as Tenants in Common is exactly what you should not do. If you did and your former partner died one half of the property would pass under his Will or intestacy and not to you. Whilst you hold as Joint Tenants his half would pass automatically to you on his death irrespective of his will.
What you really should do is arrange for a Trust deed to be entered into dealing with the beneficial interests in the property. This is important whilst you are still friends as so often in such situations there is a falling out before title can be transferred or the property sold and then you have major problems and major legal bills sorting it out.
A:
This is an interim charging order which attaches only to your former partner’s share of the property. As such it need not be of any particular concern to you other than to highlight the present totally unsatisfactory position.
You have spent considerable sums of money on a property which is held jointly and in equal shares with another person who is not contributing. That person will be able to claim half of the equity in the property on sale. It is a situation which needs sorting out.
A:
This is an interim charging order which attaches only to your former partner’s share of the property. As such it need not be of any particular concern to you other than to highlight the present totally unsatisfactory position.
You have spent considerable sums of money on a property which is held jointly and in equal shares with another person who is not contributing. That person will be able to claim half of the equity in the property on sale. It is a situation which needs sorting out.
Seperation-Q&A (14)
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It is unfortunate that with such a long separation (which is unfortunate in itself) that a separation agreement was not entered into. This would have provided evidence of what was agreed and could have contained a clause that your wife would not make any claim on after acquired property.
The difficulty you have is that on divorce a court can do more or less anything. Thus should your wife choose to make claims when a divorce petition is eventually presented, the whole position at that time must be considered. This will take into consideration the distribution which has already taken place, your position in having acquired a share in a new property and whatever your wife's financial position may be.
You ask what you can do about this. The answer is absolutely nothing. However what has happened with you setting up a new family is absolutely normal and to be expected. You will not be penalised for it and my expectation is that it will make absolutely no difference to the divorce settlement. In that you will be looking simply for an order that you and your wife having distributed the family assets between yourselves all further claims arising out of the marriage are dismissed.
A:
Young children make a huge difference to the situation on marriage breakdown, and the duty imposed upon the courts is to ensure their welfare and that they do not suffer more than can be avoided by the break-up of the family. The consequence of this is that your daughter as the parent with day-to-day care must be provided with a roof to put over the childrens' heads. On divorce this can be done either by postponing the fathers claim against the matrimonial home until such time as the children have no further need of the home or by increasing the mothers share to the point where she is in a position to obtain alternative accommodation. It is not particularly relevant here that the husband owned the property before the marriage.
If divorce is not intended at this time, the courts can play no part other than to put your daughter back into occupation and exclude the husband if this is what is desired. It could be possible to petition for a judicial separation but this is rarely helpful.
A separation agreement would fit the bill, but this will of course require discussion between them. How possible is this? What is your daughter actually looking for? But she want to get back into the home? What is happening with regard to maintenance for herself and the children?
My concern here is to allowing a status quo to develop and your daughter leaving herself open to possible suggestion that she does not need the home.
Providing your daughter's name is on the title as joint tenant there should be no danger of her husband disposing of the property. She might wish to consider splitting the joint tenancy so that the property is held as tenants in common. That way her 50% is held separately. She must also make sure that the mortgage is being paid as she will remain liable.
A:
I can answer one part of your question quite simply. Legal aid or public funding as it is now called is rarely free in civil and family cases. If as a consequence of being granted public funding you recover or retain money or assets these must be used to repay the fund. Thus in your case you will quite certainly retain your share in the matrimonial home and the charge to the fund will be registered against that and repaid (with interest) when the property is sold.
You say that your husband requires a separation. If this is the case there is no power for the court to vary the ownership of the matrimonial home or make orders for its sale. For this to happen in the present circumstances there must be divorce proceedings or an application under the Trusts of Land Act which would be quite inappropriate.
I am far from certain from what you tell me that your husband is entitled to a divorce. Whether you would consent to one and whether this would be in your interest is something that will need careful consideration. Were there to be a divorce the financial settlement would not necessarily involve a sale of your property. I notice that you are disabled, unable to work and maintain yourself other than from state benefits. Any divorce settlement will allow for your housing needs and future maintenance and also the needs of your daughter (and granddaughter?) whilst still in education.
A:
You would not appear to have any liability for the credit card debts which will be your husband's sole responsibility as the cardholder. This would appear to be confirmed by the fact that the card company will not speak to you. If you had any liability towards them they would need to do so.
The position with the joint loan is different and it would seem that you will have responsibility to the lender for the full amount if this is not paid by your husband.
Liability between your husband and yourself for these family debts is again a different matter. Whilst you remain married any court is unlikely to get involved and repayment is largely a matter for you and your husband to try to agree between yourselves. Should you decide to divorce however payment of these debts would come up for consideration in the financial settlement
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The first thing to appreciate is that although separated you are still married. You will know only too well that marriage imposes certain obligations and these do not come to an end until such time as your marriage is dissolved. The classic example is that if you won the lottery, your wife would have a claim on this which would not be affected by the fact that you were living separately. Thus it is unfortunately not possible to move on to a new life entirely whilst still married. If you prosper during the time between your separation and the divorce she would have a claim on any money is made.
There are however a number of things that can be done. The first is obviously to divorce now if you are certain that the marriage has irretrievably broken down and providing there are the grounds for divorce. I am happy to advise on this if such would be the preferred route.
Another alternative is a separation agreement. In your case this would include terms that she would not have any claim on the property you wish to purchase. The only problem with separation agreements are that in divorce proceedings, they are not binding upon the court. Thus if in 18 months time the court was asked to decide financial matters between you and your wife it would be possible (but not likely) for them to interfere with the separation agreement if they believed that it did not fairly distribute the matrimonial assets.
So in answer to your question unfortunately yes. If you go ahead and buy a property, in theory she would have a claim against it in subsequent divorce proceedings. From the limited information you give me however this claim would not be particularly strong, and your position would be much strengthened by a separation agreement. If you cannot divorce now you should certainly consider entering into a separation agreement.
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I am afraid that this is not a cause of action and no proceedings can be brought.
A:
Yes. This is risky and not something which I or any lawyer could recommend. If you owned a property at the time of a divorce it would be an asset to go into the pot for division although doubtless a Court would take notice of the circumstances surrounding its acquisition. If your marriage has broken down it is far better to grasp the nettle now and get the divorce and financial settlement over with before you start your new life.
A:
The separation agreement which you signed with your wife records the intention of the two of you when you separated. Unfortunately it is not binding on a divorce Court although it will be highly persuasive should they be asked to decide upon the division of matrimonial assets. The reason for this is that the courts have an absolute discretion in such matters which must be applied in accordance with the legislation and which can not be fettered.
From experience she is bluffing which is common and usual-but it is of course you who knows the woman and must decide. From a common sense viewpoint it would be ludicrous to incur legal costs over what I suspect is a fairly small aspect of the settlement agreed.
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In certain circumstances the court will make what is known as an Occupation Order which will regulate who occupies a property. Whether an order would be made in your favour is a question dependant upon the facts but it is usual for there to be some measure of physical violence before an order is made. A court is aware however of the effect of mental abuse which could result in an order being made.
Even were you to obtain an occupation order, it would only be for a short period as they are considered only a stop gap measure whilst people sort out their affairs and here what is to happen to the house. I fully appreciate your thoughts that the situation sadly can only fully and properly be resolved by deciding all financial matters as part of a divorce settlement.
A:
There is no easy solution. Certainly nothing can be done to stop your former wife from moving to the Shetland Islands. The consequence of this is that clearly your son must either live in the Shetlands with his mother or with you.
Both his mother and yourself have equal rights with regard to your boy. The position of the courts is to expect you and her to work together and make your own arrangements for the best interest of your son. The courts will therefore only become involved when there is a dispute which cannot be resolved between the parents. The consequence of this is that if she does indeed move to the Shetlands and this proves to be permanent (which personally I doubt) then it is for you to come up with a contact plan. I appreciate how difficult this will be whilst your son is still a baby. However all the advantages are with cooperating with her so that at least when he is older he will be able to come and stay with you.
A:
You should ask yourself whether there is any prospect of you living again with your husband in harmony. If the answer is no it is best to grasp the nettle now and divorce. This will enable all the matters you are concerned about to be resolved. Although separation may seem a simpler solution in effect it is not as whilst married there will always be uncertainty and the financial obligations of married couples to each other will continue notwithstanding the separation.
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I am afraid that an agreement such as this made between spouses is not legally enforceable. The only way in which you would be able to enforce what was agreed would be as part of divorce or judicial separation proceedings
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I am afraid that an agreement such as this made between spouses is not legally enforceable. The only way in which you would be able to enforce what was agreed would be as part of divorce or judicial separation proceedings
A:
The answer to this is that if whilst married, your husband transfers his share of the property to you, stamp duty will be payable on the value of the interest transferred. However if the transfer is made following an order of the court made in divorce proceedings, no stamp duty is chargeable.
A:
I think that sorting out repayment of the loan is only nibbling at your problems. You have found someone new and want to get on with life. Your
marriage is obviously quite dead and the sooner it is dissolved by divorce the better. It is only on divorce that all financial matters arising from
the marriage can be finalised and the loan should be dealt with in conjunction with all othert financial matters. If this does not happen there is
the danger that you will not get full credit for the payments you make on the loan when you do finally divorce.
As you realise,your wife and yourself are equally responsible for repayments on the loan. Your wife has an obligation to the loan company but
does not have a legally enforceable agreement with you to make the payments.Therefore outside of divorce I do not think that there is very much that you can do. If you stopped payment, the loan company would of course enforced payment against your wife, but also against you.
My advice is to petition for divorce, and seek a financial order which islikely to be a 50/50 split of matrimonial assets less liabilities at the time of separation.
A:
As you say this endowment policy appears to have been missed out of the consent order prepared by your then solicitor. This is notwithstanding an intention that the policy be transferred to you.
Under the existing order there is probably little you can do to force your former wife to effect the transfer. I can see but 2 alternatives. The first is an application back to the Court for rectification of the Order so to effect the true intention. The other is to bring proceedings in negligence for your loss against the solicitors. You will probably agree that neither are particularly attractive and possibly a first step should be a formal letter to your wife demanding compliance with the intention.
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If your friend is paying his wife £2000 a month I am not surprised that she will not agree to a divorce. This is quite unsatisfactory and the law does not encourage arrangements which prevent parties from getting on with their lives. It would appear beyond doubt that your friends marriage has irretrievably broken down and in my experience there are few cases where the subjective behaviour test to give entitlement to a divorce can not be satisfied.
You ask about the effect of your intended cohabitation upon the eventual divorce. I would need to know more before advising but suspect that it will be fairly minimal. This is on the basis that you are neither particularly rich nor particularly poor.
What is certain however is that there is and will be uncertainty. My advice is to try and avoid this and for your friend to make every effort to clear the decks by having his marriage dissolved and the financial union with his wife severed.
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The first question with regard to sorting this out is whether or not your marriage can continue. I would not wish to push you towards divorce but you must appreciate that this is the only way that you can obtain any restitution of the monies she has taken. If you are to remain unmarried you must take your wife as you find her. Should you divorce this is the sort of conduct on her behalf which is likely to affect the financial settlement.
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If you get divorced it is essential that you obtain what is known as a clean break order as part of the divorce proceedings. Only once this order has been made would she be prevented from making any claims on the house or from you. Let us know if now or in the future you need help in dealing with a divorce and obtaining the necessary ancillary orders.
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Hi
I suspect from your question (which raises large and complex issues) that you should be thinking along the lines of obtaining a special guardianship order. We will be happy to assist with this but a first step must be for one of our lawyers to fully consider the situation. I suggest that you send full details of your situation to our lawyer team through our legal advice service at http://www.legal-zone.co.uk/legal_advice
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A:
I am afraid that rights on the breakup of cohabitation are very different from when the parties are married. Even with a long relationship such as yours you will not automatically obtain an interest in property in which you are not registered as an owner. No more will there be a continuing right of support.
There can be exceptions to the harshness of this law when a person has been misled or promised an interest in property. I would need considerably more information from you however before I could advise on whether this might apply in your case.
The position is different with regard to your twins. They have an ongoing right to maintenance from their father although there is no stipulation that he must provide a home.
I want to:
• Get a divorce
• Have contact with my children
• Make a small claim
•Write a letter of claim
•Obtain a Grant of Probate
•Get legal advice and help with my case
•Make a Will
•Change my Name
•Prepare a legally binding agreement
• Sever a Joint tenancy
• Prepare a Partnership Agreement
• Sell a Jointly owned Property
• Appoint a Guardian for my children
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