my husband of nearly 25 years is anticipating a large inheritance from his mother and wants a quick divorce before she dies. He wants me to consent to say that we have been living separate lives in same house for 2 years already. On what grounds/criteria can he prove this ? Also how can I make him move out to get the clock ticking on the divorce without my consent after 5 years separation ? I wish to retain the benefit of spouse's pension and life assurance. thanks, XXXXX
hello, thanks for replyingCould you tell me why this financial information is required please and can you assure me that it will not be passed on to other parties ? On the assumption that this information will only be used for this purpose here it is:House is worth approximately £XXX,XXX with no outstanding mortgagefyi the house is in my sole name. I bought this house from him in 1989 so he could buy our first marital home whilst renting this one out. That house was sold in 1994 so we both have lived in this one since.Assets (all approximate) £XXX,XXX in cash plus an inheritance to me from both my parents' deaths of £XXX,XXX. In addition there are shares worth £XXX,XXX....making joint assets of £X,XXX,XXX No debts - only Visa cards whose balances are cleared every monthWe both have pension funds with the same employermy spouse's pension (in the event of his death whilst married) is estimated to be around the £XXXX per annum I would expect that his spouse's pension (in the event of my death whilst married) would be larger....2008 value I have is £XX,XXXMy income is about £XX,XXX GROSS but I could be made redundant ...possibly voluntary in the next year or so as I'm 55 with health conditions His income is £XX,XXX GROSS made up of a Disability Salary from employer of £XX.XK plus EESA benefit of £X.XKNo children Husband's mother is XX years of age - she does have medical conditions but no immediate cause for concern. She could go on for years yet.I'd assume that his inheritance could be over £X XXXXXXX although they have taken advice on inheritance planning and are moving assets from mother to son. I believe he has a separate account for these funds with perhaps £XX,XXX in it although not sure. Further question: is it possible to get my husband to cover my legal costs as they will be incurred due to his choice not mine ?Hope that that answers your questions...let me know if you require further regards, XXXXX
p.s. having looked at your profile I can read the details of your previous answers. I'm alarmed that the private financial information I submitted to you in confidence will be visible to others ....please will you edit out the numbers and other identifying information like mother's age
that's absolutely fine - appreciate you letting me know. Please take the time you need to reply effectively as I'm happy for you to respond by close of business Thursday. thankyou
Dear XXXXX Thanks for your replies and further information. 1. Your privacy – as you can are, this is a public site and questions and answers as a general rule can be seen – but I will ask the admin to remove your question & information given and my answer from public view., as soon as I have posted this answer. I believe this may only be possible once you have accepted my answer but I will check with admin. I am not able to edit anything you have written but I and anyone looking has only your first name and no idea where you live, so I doubt whether you can be identified. 2. The divorce. Divorce is made up of 3 elements – a) the legal dissolution of the marriage, b) resolving financial and property matters associated with the divorce, and c) deciding what's to happen re any children. In your case, it's just the legal dissolution of the marriage, and property & finance. a) Divorce ie the legal dissolution of a marriage – the process starts with the filing of a divorce petition at court, and ends when the decree absolute is granted. You are still married until the decree absolute is granted. Divorce is a form of civil litigation, which means an argument between two parties that is decided by the court. Just like any form of civil litigation, the allegations made by one party can be contested by the other, with the court being asked to decide whether the allegations are made out – but in divorce cases, if the respondent to the divorce does not wish to contest/defend the divorce, there is a much quicker process called special procedure divorce (but even then it will take about 6 months to get to decree absolute). 99.9% of all divorces these days are special procedure divorces. Neither party will have to attend court (unless there is a dispute re costs).This process is only appropriate where there is no dispute (ie in relation to the divorce itself – I'm not talking here about finance/property – see below for that) for the court to deal with. The only ground now for a divorce is the irretrievable breakdown of the marriage, based on one of 5 facts. The fact that the parties have been separated for 2 years, and the respondent consents to a decree of divorce being granted, is one of these. The only proof required is the respondent confirming on the acknowledgement of service form that he/she consents. The acknowledgement of service form is sent to the respondent with the divorce petition, and has to be completed and returned to court, so that the court knows that the respondent has received the divorce petition, and so that the court knows what (in brief) what the respondent's position is. So if you receive a divorce petition based on the fact that you and your husband have been separated for more than two years and alleging that you consent to a divorce – but you do not - then just answer no to that question on the acknowledgement of service form. When you have completed the acknowledgement of service form, you then send it back to court. A copy of the acknowledgement of service is then sent by the court to the petitioner's solicitors. If you have answered “no” to the question re consent, any reputable family law solicitor will advise their client to amend the petition to change the basis on which they allege that the marriage has broken down. This could be in your case either to a petition based on your behaviour or a petition based on the fact that you have been separated for over 5 years (if that is the case) for which your consent is not needed. No reputable family law solicitor would advise their client to switch to the contested procedure to “prove” that the respondent consented, because that cannot be proved except by the respondent indicating that he/she consents on the acknowledgement of service form. If you do answer yes – ie you consent so there is no dispute, the next stage in the divorce process is for the petitioner to apply for decree nisi. The application for decree nisi requires the petitioner to file a statement at court in support of the petition. This is in a standard format. In the case of a petition based on 2 years separation with the respondent's consent, the petitioner is asked “Since the date that you separated, have you ever lived with the respondent in the same household (there can be more than one household at the same address)? “ and the petitioner only has to answer “No” - that is all. The form has been simplified recently – it used to ask whether the parties eat together, shared a bedroom, socialised together etc. So – the court will have your signed consent on the acknowledgement of service form as proof that you consent to a decree based on 2 years separation, and in his petition, the date of that you separated, and the fact that you have not lived together in the same household, as confirmed by your husband in this statement – so a date for the decree nisi to be pronounced at court will be set up. The date will usually be about a month later. There is no need to attend court on the date that the decree nisi is to be pronounced unless there is a dispute re the costs of the divorce. If your husband has made a claim for costs against you in his petition, then in the acknowledgement of service form, you will be asked whether or not you object to paying his costs (and this will relate ONLY to his legal costs in relation to the divorce, not any of his legal costs in relation to property/financial matters). The petitioner in a divorce case is entitled to make a claim for costs against the respondent just as the applicant in any other civil litigation case can. You could answer eg Yes I object – because it was the petitioner's choice to issue divorce proceedings, as I did not want to divorce, or Yes – because it was at least as much the fault of the petitioner as mine that the marriage broke down, or no as long as the costs order is for the court fee of £410 only, or no as long as the costs order is for no more than £800 inclusive of vat and court fee etc. If there is no agreement about whether or not you should pay his costs of the divorce, then when the court informs you of the date of the decree nisi, and at the same time notifies you of any costs order that the court is proposing to make on the same day, then you will need to inform the court and your husband through his solicitors that you object. The court will then set up a short hearing to decide the issue of costs. But the court will definitely not order that the petitioner pays the respondent's costs ie your costs. My advice is that if one person thinks that the marriage is over, then it's over, and raising difficulties over what is in the divorce petition will not only cause delay but also make negotiating and generally dealing with the financial and property side of the divorce more difficult. However much delay you cause to the divorce process, in the end the divorce will proceed, so you are better saving your energy for arguing over finance and property rather than the divorce process. But – if you DO think that the marriage can be saved, then your best bet is to make an appointment with Relate. Even if your husband refuses to go with you, there can still be benefit in going alone, as the Relate counsellors can help you get clear about what you want to happen and how to manage the relationship with your husband. Here's where to find a local Relate office:- http://www.relate.org.uk/find-my-nearest-relate b) Finance & property associated with the divorce. Once a divorce petition has been filed at court, if the parties cannot agree, either party can ask the court to decide how the matrimonial assets should be divided. The matrimonial assets are everything in joint name with each other or jointly with any other person, plus everything in the sole name of the parties. Any negotiation has to be carried out on the same basis that a court would decide, or an agreement could be overturned later. The most important principle is the principle of full and frank financial disclosure by both parties to each other (and to the court, if it goes to court). Also, for any agreement reached between the parties to be made legally binding ie turned into a consent order, it must be fair to both parties ie that leaves both parties adequately housed with enough to live on. The court can make an order in relation to property & finance after decree nisi but it will not take effect until after decree absolute. In matrimonial property & finance cases, the court has enormous powers to change ownership of property, make lump sum orders etc. The first stage is information – making a full list of all the assets that each person has or has an interest in. The court form that each person completes in a court case is Form E, and it can be useful to use this form to gather the information for each person and as a basis for negotiation even if no application to court has been made as yet. http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-e-eng.pdf Each person needs to be open about all their assets, even if they want to argue that a particular asset should not be counted as a matrimonial asset ie not added to the pot to be shared out. That means that your husband needs to provide details of the account that he uses for monies from his mother, and you will need to provide details of your inheritance of £XXX,XXX. If there is a dispute about what is a matrimonial asset, the court will look at the situation as at the date the matter comes to court. If your husband's mother is still alive, he does not have an inheritance. Instead, he has an account in his name with £XX,XXX in it. My view is that these monies will be treated as a matrimonial asset. If you have kept your inheritance of £XXX,XXX in a separate account so that it has not been mixed in with general household monies and nor have you dipped into to to cover household expenses, then you may be able to argue that these monies should not be treated as a matrimonial asset, and not count towards the total to be divided. Having dealt with any argument about what is or is not a matrimonial asset, the court then considers how the assets should be divided. The court starts from the position that the matrimonial assets should be divided 50:50 – then looks at reasons why that should not happen. Reasons why one person should get more than 50% of the assets would be eg if they were to provide a home for any dependent children, or if their income was significantly lower than the other person's. In your case, it is highly likely that the court would order a 50:50 division, as your incomes are not that different. If there were not to be a 50:50 division then as your husband has a lower income than you, he could argue for slightly more than 50% eg 60% - but in view of his prospects of inheritance, even though it cannot be taken into account as if his mother had already died, you could argue that his share should not be more than 50%. So – worse case scenario – your inheritance IS counted as a matrimonial asset. Pensions count as matrimonial assets. The pension trustees need to be asked to provide a cash equivalent transfer value of your fund (CETV) (and your husband will need to get the CETV for his fund). Usually a percentage of this eg 25% is added to the total ie the amount that the person can take as a lump sum at retirement age. You've given me the figures for the pension income that you would each be likely to receive on the death of the other rather than the value of the fund – so I will leave out pensions from this calculation. But as your income is larger, it follows that your pension fund will also be larger, so that adds to the assets that you already have and reduces what you can claim from the other assets. That means that the total assets (excluding pension funds) are: House £XXX,XXX Your inheritance £XXX,XXX Shares £XXX,XXX Cash £XXX,XXX His a/c £XX,XXX Total £X,XXX,XXX Your share @ 50% = £XXX,XXX If you wanted to stay in the house, the assets could be divided as follows: For you House £XXX,XXX Your inheritance £XXX,XXX shares £XXX,XXX cash £XXX,XXX Your total share = £XXX,XXX (I have made an arbitrary division of the cash & shares – of course it could be any other division, as long as your total comes to £XXX,XXX ie 50% of the total assets.) For your husband His account £XXX,XXX cash £XXX,XXX shares £XXX,XXX His total share @ 50% = £XXX,XXX Income after divorce: You are correct that you will lose the spouse's pension on decree absolute. The only argument that you can make for assets that you will lose on decree absolute is that you should have a larger share of the other assets to compensate for that. But your husband will also lose his spouse's pension from your pension – which you anticipate will be larger, therefore, the benefits he will lose on decree absolute will be greater than you. It is very unlikely that the court will make a pension-sharing order, unless either of you have a pension fund of at least £100,000 , and there is a significant difference in the level of the pension that you would each currently be entitled to without a pension-sharing order – but if the court does make such an order, it would be in your husband' s favour as his pension fund is less than yours, and his current income and earning capacity is also less than yours. You will not get spousal maintenance (called periodical payments) as your income is higher than your husband's. It is also very unlikely that he would succeed in getting spousal maintenance from you as your income is not significantly higher and in addition there is a high level of assets to be divided. 3. Getting your husband out of the house. Although the house is in your sole name, your husband as a spouse has a matrimonial right to occupy it. It is possible to get a type of injunction called an occupation order, which is a temporary and emergency measure which if granted by the court suspends a person's property rights (until a permanent solution is fund) and they can be required to leave a property as a result – but the court will only make such a drastic order if the person's conduct has been very bad eg violence or threats of violence, and if the risk of harm to the victim if this person does not leave are greater than the risk of harm to that person if they are forced to leave. Once the court has granted the decree absolute, then if the order in relation to finance and property is that the house stays in your sole name, then he no longer has any right to occupy the property. Going to court in relation to fiance and property is expensive, stressful and time-consuming, so my best advice to you is to negotiate, NEGOTIATE, N E G O T I A T E! whether between the two of you, via solicitors, or via mediation. If you can reach agreement, then that agreement can be turned into a binding legal agreement by a solicitor translating it into legal terminology as a draft consent order, to be signed by both of you and filed at court for the court's approval. Once approved by the court, it is as binding on both of you as a court order made following contested proceedings. The family court anyway now requires the parties to have attempted mediation before it will consider an application. Whether or not the end result is via a consent order or an order following contested proceedings, it is very unlikely that the final order will include a costs order in favour of either party, because it;s a family case, when costs orders are generally frowned upon. Here's where to find a family mediation service near to you:- http://www.familymediationhelpline.co.uk/find-service.php I think it would help if you had some face-to-face legal advice. Here's where to find a specialist family law solicitor:- http://www.resolution.org.uk/findamember/ I hope this gives you food for thought and I wish you the best of luck. I hate to specify - but please rate my answer ok, good or excellent - or I get nothing for my time!!! (so the website keeps all). Thanks and best wishes...
Hello again, sorry for delay. I printed your answer when I was online but have yet to study it in detail but I'm sure my 'rate to finish' will be the top one :-) May I push my luck by asking you one more question please ? My husband has 'an advance' (cash) on his inheritance and wants his mother to sign over her 2nd property (not main residence) to him in the hope she'll live 7 years to negate any inheritance tax on it. If he writes a will specifying that those parts of his estate either go back to his mother, if he pre-deceases her, or goes to x/elsewhere please will you confirm that I cannot contest this ? If you confirm yes it may well be the solution to his problem other than divorce....which would save all the hassle of getting one and not deprive me of a spouse's pension in the event of his death. many thanks,
DearCustomer thankyou for your latest reply. Your perception is correct that he wants to divorce me anyway and this potential inheritance and tax planning for it has just provided the momentum. It'll be hard for me to accept but you hit the nail on the head when you advised that if one person thinks that the marriage is over, then it's over.
thankyou again - you've been very helpful
My pleasure. However just when you thought you'd got rid of me I have another request for advice. We're both keen to help each other in future even if my husband may choose to live somewhere else. If we stayed married but living in separate residences, so as not to lose each of our spouse's pensions from our employers, is there a legal device which my husband can use to protect his inheritance from me in any future divorce ? I've heard of pre-nuptial agreements so is there a pre-separation agreement ? Or is there some kind of trust he can use to fence those assets from me having any claim on them ? many thanks,
If you stay married, then the best way forward is a detailed deed of separation.
Although it's not legally binding, if in years to come, either one of you did decide to divorce, and asked the court for an order that was substantially different to what had been agreed in the separation deed:-
- which both of you had signed
- having each had independent legal advice
- each of you having been fully open about all your assets, both in joint and in sole names
- the agreement recorded in the separation was fair,
- the circumstances of both of you was either the same as at the date of the deed, or not substantially different, or, if substantially different, predicted to be so in the deed of separation, and taken into account in the agreement
THEN I think it is very unlikely that the court would make any order in relation to matrimonial assets that differed from the agreement recorded in the deed of separation.
I don't have expertise concerning trusts - for that, I think you need to consult a probate/trusts solicitor with knowledge of this area of law.
I hope this helps!
Thanks and best wishes...
you've been brilliant thankyou. your prompt reply to this has given me hope of a possible alternative solution, regards,