Marilyn Stowe Blog

Mel on January 6, 2010 at 10:24 am

What happens when the husband has put everything into the marital home, because the wife refused to work, and in the divorce, he has moved out of the family home, but is going to hardly get anything in the settlement, because she is still refusing to work full time, and therefore cannot raise the funds. There is a 10yr old child involved. He lives with the mum, but spends 3 nights a week with the dad. The mum has mental health problems, and has threatened to kill the child in the past, and also threatened to kill herself

Carolyn Welsh on January 6, 2010 at 10:35 am

I am going through a divorce after 2 years separation, my husband and I have been to court regarding our child and it was decided that I have residency and my husband has access approx 5 times a year. I have started a new relationship with a man who lives in America. We are planning to marry and for my son and I to move to America. I understand that I need my child’s father’s permission to let him move abroad, but what if he refuses to give his permission, where do I stand?

Stephen Hopwood on January 7, 2010 at 2:07 pm

In response to Commenter #2 (Carolyn):

I head the Children’s Law department at Stowe Family Law and thought it best to respond to this query myself.

Relocation cases are the most agonising decisions for any family judge. The decision has no grey areas in which to hide: the child is allowed to be permanently removed or not.

The balance is what is best for the child in each individual case. Would the child be better off remaining and the access pattern continuing, with all the resentment that will cause? Or would it be better for the child if they moved with the parent and access was modified?

I recommend that you are as organised and transparent about this as you can be. You must inform the father as soon as possible and provide as many details as you can. As you note, his consent is required.

If the father opposes your plan, you will need to seek an order of the court. The other reason why I recommend disclosing your plans as early as possible is so that if there has to be a court process, it is better to get it out of the way in enough time so that you can move on your planned date.

Every case is different and a decision one way or the other cannot be guaranteed. Based solely on the brief information that you have provided, however, you have reason to be hopeful. The child resides with you and access is low – it seems likely that the father’s access could continue, despite the distance.

Marilyn Stowe on January 8, 2010 at 11:33 am

In response to Commenter #1 (Mel):

Men often believe they get the rough end of the stick on divorce. They need to be carefully advised: a good lawyer will always make sure that what a man wants post-divorce is taken into account by the court, as is his full financial contribution to the marriage.

The first thing to sort out for any father is parenting arrangements. The welfare of children in divorce is paramount, and it is generally believed that children will benefit most from having two parents caring for them. If a husband feels he can assume equal responsibility for care then he should apply for a joint residence order, which will mean the parenting is shared. The fact that he works should not affect his decision. He should do this before sorting out the financial side, because the court will find it hard to resolve the parties financial needs until it is decided where and for how long each week or month the children are going to live. If children are cared for jointly, it also means that financially, the consequences of that care must be shared.

If a mother is mentally unfit to look after a child then a husband would need to consider applying for a sole residence order – at least in the short term until she has recovered.

Then there follows housing, income and other capital needs. The courts must consider the needs of both parties, not just one in every case. Perhaps in this case, the husband feels frustrated that his needs are not being given sufficient consideration. And that is a pity.

If it is feasible for a wife to work, either now or in the foreseeable future, then this too must be considered by a court. The husband needs to consider what, realistically, her income capacity could be – and if necessary produce evidence to verify this. If parenting is shared, it is easier for a wife to work.

Similarly if the husband has made a major financial contribution – particularly before the parties were married – that too will be taken into account.

If a court is going to leave the wife with substantial capital, then a husband can apply for a Mesher Order – see my previous post.

I hope this helps.

hetta on January 8, 2010 at 3:34 pm

i am going through a divorce at present. i attended court on tuesday because i disputed the reason for divorce as outlined by my ex. Today i received a letter from the court stating a file and serve answer out of time i do not understand. Prior to this all correspondence was returned on time but the info. was not forwared to the jhudge on time and i was told i needed to pay £200 for the judge to look at my letter which i did.

Marilyn Stowe on January 8, 2010 at 5:53 pm

Hetta there is a court fee to pay for lodging an answer with the court and I assume this may be what you are required to pay – you can check with the court.

But may I please give you some additional advice?

I understand full well how unpleasant it is to receive a nasty petition. However you need to think commercially and sensibly right now.

You could try and agree with your husband the way forward in terms of a divorce. I do know that a defended divorce can be very unpleasant indeed and the “loser” can still end up with a divorce after a nasty, bitter and very public contest and also a hefty legal bill to pay.

I would urge you very strongly to take legal advice as to your position because if your marriage has irretrievably broken down,(and this is something you really need to think about because your husband seems to think it has) then you need to act and the following are only suggestions.

You can consider a divorce based on an amended petition, or cross decrees both of you divorcing each other, with no admissions either side ; or perhaps a petition based on your allegations against your husband, in all cases agreeing either each side pay their own costs or no order for costs, depending on the advice you are given. If there is already a costs order against you in relation to the last hearing, your husband could always agree to waive it so the petition could proceed.

Remember always to keep your eye on the ball. There may be other things to concentrate on which are much more important right now, such as finances children and your future.

It is much, much, better to look forward.

I wish you very well.

Marilyn

Sean on January 12, 2010 at 12:57 am

Three years ago my former wife moved away taking our two children with her Derby to live with her new partner, with whom she committed adultery.. This relationship broke down and violence was involved on both sides. She returned back to the town where I live last February, and set up home nearby. The boys started in a new school and are now settled. She has now threatened to move back to Derby nearly a year later, having continued a relationship with her former partner. I don’t want my boys to be moved yet again, changing schools yet again… My eldest is just 8 and has now had three schools and he’s only in year 3, My youngest is in year R at his new school near to where I live. I feel that it won’t be in their best interests to move yet again, to go to different schools, away from their family network of grandparents and friends, and possibly return to an environment where their has been violence in the past. She currently has residency, we have joint parental responsibility and I currently have regular access every other weekend Friday night to Monday morning and a night in the week.I regularly pick them up from school and drop them off too so I’m wondering whether residency for me could be a possibility. I have now recently re-married. What are my options?

Eleanor Webster on January 14, 2010 at 11:33 am

In response to Sean: I am a solicitor specialising in child law, based in Stowe Family Law’s Hale office. I am sorry that you have found yourself, or rather your children, in such an unstable position. It is understandable that you would like your children to stay where they are, now that they are settled and close to you and your family.

You mention that there has on occasion been violence between your former wife and her new partner. In the event that you are genuinely concerned there may be a welfare issue at stake, you may wish for residence to be transferred to you alone, if only for a temporary period while your former wife resolves her situation. You may need to take action to ensure that the children are protected from domestic violence (whether as direct or indirect victims). The presence of violence in the relationship would strengthen your application for a sole residence order of course, but it may be that you should consider making an emergency application, to ensure your children stay out of harm’s way. You have a duty to protect your children from harm, and you may face criticism by the court if you return the children to that environment without the risk of harm being assessed.

Another option might be to apply for a shared residence order. This would reflect that both of you parent the children equally, and that they have two homes. The shared residence order would not necessarily entail a 50:50 split of your children’s time, and can be as detailed or otherwise as you wish in terms of how exactly their time should be shared between you, but it would firmly establish that care is shared. As in all children cases, the welfare of the child is paramount, and the court would look at various factors including the age, and wishes and feelings of the child in making their decision.

In the event that your former wife decided to move the children back to Derby, and you were not prepared to consent to her doing so, she would have to apply for the court’s permission to relocate. It is exceptionally rare that the court would refuse permission for a parent to move the children within England and Wales, on the ground that the children would still be “accessible” for contact by the non-resident parent, and she would therefore most likely be successful.
However along with your application for residence, or independently, you may wish to apply for a specific issue order in relation to the boys’ school. If the court orders that the boys should continue to attend their current school, your former wife would be in breach of the order if she attempted to enrol them in another school in Derby, and that school would be in breach of the order by registering them.

Of course it is usually better for the children if the issues affecting them can be agreed between mum and dad, and I hope that you are able to agree a plan between you.

Vicki on January 14, 2010 at 12:17 pm

Hi

I wonder if you could give me some advice, I am presently in a relationship that’s not stable. I believe and have some evidence that my partner has cheated in the past he is also very unpredicateable in his behaviour.

We have a 20mth son and whenever i ask him to leave he threatens to take our son with him yet when he is around he has very little tio do with him. Does he have the right to do this. I no he has parental responsibilty as he is named on his birth certificate but how far does this actually go. I idolise my son and couldn’t bare to live without him. but he makes our life miserable and seems to resent having him yet uses him as a weapon as he know’s this gt to me.

Marilyn Stowe on January 18, 2010 at 2:55 pm

In response to Vicki:

I spoke on GMTV about how wrong it is to use children as a weapon in a relationship breakdown – and you must not be deterred by threats that are usually groundless.

It seems your relationship has broken down. What you need is some urgent practical advice about the best way to separate from your partner, including whether you need a form of injunction against him, and also to consider the future arrangements for parenting your son by both of you, in the best way for your son.

You also need to consider the financial implications of separation in relation to your home: who owns it and how and where you and your son are going to live, and financial provision for your son. It will all depend on your own circumstances.

Sometimes people worry about seeing a solicitor, especially about the cost. Please don’t. In addition to your possible entitlement to legal aid, many solicitors do offer free first appointments regardless of finances. At Stowe Family Law, for example, we have a free legal clinic once a week to give advice on family matters.

I hope this helps, because I think you need to take some urgent legal advice to stop you being so worried.

Best wishes,

Marilyn

Barrie Stevens on January 25, 2010 at 1:06 pm

My wife threw me out of her council house. She now wants a divorce based on lack of affection. She wants me to support two stepchildren who are 22 and 24 respectively. She wants me to pay costs. She wants all of the
£78,000 I inherited during the marriage and invested in developing a market garden claiming she did all the work which she didn’t and she has sent valuers to the property. Only my name is on the land deeds to the market garden. I am going to contest for five years but do I have to give her the property or any part?

Marilyn Stowe on January 26, 2010 at 11:47 am

Barrie thanks for this. You need to see a solicitor and you will be asked all the relevant questions in order for your solicitor to advise you as to how to sensibly obtain a divorce and the type of financial settlement that the court may order.
Relevant issues include the length of the marriage, your respective financial positions before and during the marriage and after separation; and your respective needs obligations and responsibilities going forward.
The court will also consider your liquidity ie ability to pay, and whether a lump sum should be paid at all, and if so how much and when.
As to adult stepchildren I dont see any reason why you should maintain them but your solicitor will advise you further in case there are specific issues such as disability.

Michelle on March 19, 2011 at 2:59 pm

I am now 45 years old, I have lived with my husband since 18 years old, seldom working. My husband and I are getting divorced, about to reach FDR. My husband left the family home over a year ago, it is now known that he is with somebody else but I didn’t know this at the time, I am divorcing him because of irreconcilable differences.
He owns a big company and his family work for him. Now he is pretending all those family members each have shares in the business, leaving him with very little for me to claim half of.
He has moved shares around a lot in the past, back a few years ago when we separated he gave all company shares to his sister. How can I prove that he is the only real holder of shares in this company, because it looks at the moment that I stand to lose half my wealth to his sister then sometime after the divorce he will get them back off her for himself.
It was never the case that the sister had interests in ‘the companies’, she was always to take over the parents family home and all worldly goods and the Son, was to be handed down the business from his Father.
My husband’s parents are still alive and backing this smoke screen having most recently even named themselves as share holders.
I am living in the family home with our two children aged 18 and 19 years, both in full-time education, all our property investments are due to flourish in 2012 and he is kicking me to the curb before that happens.

Marilyn Stowe on March 19, 2011 at 9:18 pm

Michelle
I would advise you to discuss this with your solicitors. You need to ask them to do some forensic investigations into the company and in particular in relation to the share transfer because you can if so advised, apply to have the share transfer set aside on the basis it was clearly done to defeat your claims. The onus would be on your husband to prove why he did it, why he gave up a valuable asset and income from the shares sufficient to convince a court. From what you say he may have a tough job.
Regards
Marilyn

elizabeth on March 21, 2011 at 4:05 pm

hello,

currently looking for advice quickly, my ex partner is trying to kick me out of out home.
the house is in his name, we moved into this propperty 9 years agao, we have three children, my eldest to another, his eldest to another and one together we all live together and raised the children. i have worked but part time currently a student, he works self employed. all household bills in his name apart from phone bill, thats in mine, every thing for the house we bought together over the years we built the house up together, nodody did more than the other. the house was bought out right at the start.
i dont want to leave my home, i dont want to seperate the boys, there brothers. i agree the relationship is over has been for a while.
i have got an appt for solictor but not for two weeks.
what can i do in the meantime. he can afford the best and he will do what ever it takes to the outcome he wants.
any advice would be gratefull

Marilyn Stowe on March 21, 2011 at 6:02 pm

Hi Elizabeth
You are yet another example of why we need clear cut, unambiguous cohabitation law. We dont have it and sadly we have no sign of it;- so we have to use what little legislation we do have.
I can only give you some general advice as I dont have enough information from you. You must therefore rely only on what your own solicitor advises you and what follows is a general guide only.
First, in any such dispute, you need to consider any property claims you may have in your own right.
Your partner cant kick you out of your home for a start. He needs a court order. If he tries to get you out without a court order he is committing an offence.
You will need to discuss very carefully with your solicitors the circumstances surrounding the acquisition of the property and the contributions, financial and non financial you have made. Think about what you believe you are entitled to based on your contributions. Think about what actually happened when you moved in, what promises were made if any, any reliance you placed on what he said about making financial contributions into the property, and any loss you have sustained as a result of relying on what he promised you and now renagues upon.
Put together any documentation you have which proves your contribution. Was anything signed when you moved in? If so, this may be determinative of the whole case. If not, there may be a possible claim on the equity, and you also need to think about house contents, car etc. Costs however need to be carefully considered because you could have them awarded against you if you lose. So its usually a very risky application without concrete cast iron evidence.
However, you do have other law to use.
In relation to the children, is making a residence application in your favour for all the children a realistic possibility? Think about it carefully, from the perspective of their welfare being paramount. I imagine you would have a good argument to keep looking after them all as a primary carer and not split them up especially as you only work part time. But even if not, you have claims for your joint child who I assume would stay with you together with your other child.
Claims brought under the Children Act can include provision of suitable housing, lump sum, and income, including a “carers allowance” for you. Property would remain in the name of the provider, during the children’s minority, on terms to be agreed.
You might be able to stay in the property given there is no mortgage and three children involved who you feel should remain together, but your solicitor will advise you further.
I think there is quite a lot to consider, which your partner’s solicitor will also recognise, and its a pity you cant be seen for another fortnight, if only to put your mind at rest and get the ball rolling quickly particularly in relation to the children who must all be up in the air. If you cant wait, you could consult the Law Society’s Family Law Panel website for a list of accredited specialists in your area. You should check for details of those who are advanced accredited specialists in cohabitation and children law, and if you do need it, those firms who also offer Legal Aid.
I would also mention Child support. Your solicitor will advise you further.
Hope this helps,
Regards
Marilyn

Marcus on March 29, 2011 at 1:49 am

Hello there, Deep breath because this is a one off situation I think. After 25 years of marriage, my father left my mother for another woman. My brother and I lived with my mother at the house for several years as she suffered a massive stroke due to the seperation. Incidentally, the mortgage was paid up in full by my father before any of this happened as he is a hard working owner of a business. Whilst not of sound mind, my mother must have signed the divorce papers as my brother and I were not present the day my father visited. My father covered gas and electric bills but that is all, i arranged disability carers for my mother and a benefit scheme but my father cashed in the benefit cheques (all post for our address went to him) so they must have paid the bills for him I guess. My brother got married and moved out, then it was just me and mum. My father married his new partner and they became very successful in the housing markets, they now own four large houses BUT I had to place my mother into a permanent care home as she deteriorated, then, I moved out with my fiancee. My father and his new wife moved into the house as it was empty which meant they could rent out all their other houses and get rich. My mother is in a care home funded by the government by the way. My father now has 6 months to live due to cancer. His new wife continually brags to me about all the assets she will receive including the house that my dad, mum me, my brother grew up in. She is very outspoken and hurtful but she knows her stuff when it comes to lawyers etc. I need fast, free legal aid here because she seems to have her hand on everything but shouldn’t my mother have been handed half the estate when they first divorced? Does the new wife really have any hold on the house that my father owned with my mum BEFORE the new wife even came into his life? Dad and the new wife (of 4 years) have lived there for 2 years now. Please help us. Many many thanks, Marcus.

Marilyn Stowe on March 29, 2011 at 11:39 am

This is a very sad case. You need urgent legal advice from a good local firm on behalf of your mother which from what you write needs to cover the following areas, but there may be more.
1. Your mother’s mental capacity and if she is incapable, who will act on her behalf and in which, if any, negotiations and proceedings?
2. What happened originally on the divorce? Was there any form of financial settlement? Was there a clean break settlement ? Are your mother’s claims still open and should she apply for a financial settlement straight away notwithstanding the passage of time and your father’s remarriage?
3. Does she have a claim as a dependant under the Inheritance (Provision for Family and Dependents) Act 1975 in the event of your father’s death? Is a challenge to his estate the appropriate way forward?
4.Should your father be asked to make suitable provision for her now, by Will to avoid the estate becoming bogged down in litigation and legal costs?
5. Finally there is you. Do you also have a potential claim on your father’s estate under the same law?
Hope this helps.
Regards
Marilyn

Deb on December 27, 2011 at 2:05 am

Hi, looking for some advise please, i’m in a very complicated marriage at the moment and i really want to divorce my husband on the grounds of adultry, this took place before we were married but i only found out 6 months into the marriage, we have just had our 2 yr anniversary and i want out, everytime i try and talk to him he breaks down begging me to stay and then the next breath threatening to throw me out. I don;t have my name on any of the deeds as the house was bought before we were married and i don;t want whats not rightfully mine but what i do want is to stay in the home with my son (from a previous relationship but calls husband dad) until i find another place to live, i want as little affect on my son as possible, but my husband is now threatening to sell the house to his mother for £1 and acting like a child, i’m now once again playing happy wife when really inside it’s killing me please help any advise is greatly received.

Marilyn Stowe on December 27, 2011 at 9:50 am

Deb
Stop worrying.
First consider if this marriage is capable of being saved. Speak frankly and honestly to your husband. Get counselling if it will help.
If it can’t be saved, you could divorce him on unreasonable behaviour not adultery as it happened before the marriage.
The court must consider your reasonable needs and those of your son, which include housing and income even though this is a short marriage. Your son will be treated as a child of the family.
If he transfers the house to his mother it can be transferred back again. He can’t force you out either without a court order. If he harasses you he can be required to leave the home until everything is sorted.
Take legal advice.
Best wishes
Marilyn

lily on January 30, 2012 at 8:27 pm

Hi! I need some information about financial settlement for divorce. I was married for 5 years and i left the marital home rented a new flat a took my 5 year old daughter with me. He was controlling and use to threat me. It has been 1year and a half that we are separated. The divorce is going through. I m the petitioner and the judgde agree to unreasonable behaviour. Decree nisi will be granted tomorrow. The child contact it was agreed by the court through a contact ordert so he sees her every other weekend and half of school holidays. My question is he is saying he will not sign any clean break or any settlements. As i left home he says im not entitle to anything. But by law i konw i am. the house is in his sole name. He used to pay the mortgage but i used to pay all the utily bills. When i left my solicitor put a charge on the house but i can’t afford solicitor no more i don’t know what to do now. Do i have to apply to court to decide the financial bits ? To be honest im not that interested in house but im horried that there was some debts in both names tha not been paid. Thanks for your time.

Spencer on February 22, 2012 at 10:44 am

Hi! I hoping you can help. My wife and I are splitting up and wants to keep the house I’ve owned and been paying the mortgage on for 10 years. We have been married for 18 months and have a daughter who’s 2 1/2. Whilst I don’t begrudge her some sort of settlement, I find it unfair that I should give up a house I completely renovated, lived in an owned for so long. I also pay all the bills. She has contributed £5K debt. Which I am also paying off. I would like shared residency of our daughter. At the moment there seems to be a stand off. Where do I stand?

Marilyn Stowe on February 22, 2012 at 10:10 pm

Spencer
It’s impossible to fully advise you from the information you have given. There is much about your respective financial positions in terms of income and capital that is lacking. I can well understand why you are concerned because whilst your wife’s needs are important, so are yours particularly if there is to be a realistic prospect of some form of shared residency.
If you would like to arrange a telephone conference please call our offices all of which are on 01423 532600 and ask for Paul Read.
Marilyn

Dee on April 8, 2012 at 5:56 pm

Hello Marilyn
My husband out of the blue has admitted to an affair and is wanting a divorce.I am not in favour of this and have tried to get him to reconsider and am wanting to work towards repairing the marriage.Do i have a choice in this at all.Is it more favourable financially to initiate the divorce or should i leave him to initiate proceedings if there is no hope of reconciliation.He is wanting to make use of a mediator to avoid high costs,is this a good idea considering the one sidedness of the divorce