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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 1096
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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My partner and I married secretly a few years ago in Scotland

Resolved Question:

My partner and I married secretly a few years ago in Scotland for purely financial reasons. We have occupied the same address for 28 years. No one knows of this marriage and we are not cohabiting in the true sense of the word. I am now very concerned that I have made a grave error and feel that for the sake of my children I should seek a divorce. would this be simpler in view of the above information?
Submitted: 2 years ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 2 years ago.
Hello
Welcome to Just Answer.
I am a Solicitor and will assist you.
Please can may I ask - are you both residing in the Jurisdication of Scotland or in England/Wales?
Kind Regards
Caroline
Customer: replied 2 years ago.

England

Expert:  ukfamilysolicitor replied 2 years ago.
Hello
Thank you for your response and for clarifying that for me.
I will provide you with advice in respect of obtaining a divorce.
I do like to provide a 'rounded service' and therefore to assist you - may I also ask?
- have you considered your position in respect of the matrimonial finances - when one person petitions for divorce - either party can make a claim in respect of the matrimonial finances. Will finances be an issue?
do you own your matrimonial home?
are there any other assets or pensions?
how old are your children?
Kind Regards
Caroline
Customer: replied 2 years ago.

We jointly own two houses, renting out one and residing in another.

Division of finances will be fought by my very tenacious partner.

My children are all adults, two daughter both married and one disabled son. My concern now is for my children as i am older than my 'spouse' and if I predecease him they will be severely disadvantaged.

Expert:  ukfamilysolicitor replied 2 years ago.
Hello
Thank you for your response.
You are able to obtain what is known as a 'quickie divorce' by petitioning for divorce on the grounds of your husbands unreasonable behaviour.
For a petition on this basis - you need to provide 6/7 reasons as to why you can no longer remain married to your husband on the grounds of his behaviour. The test is a subjective one and not an objective one, which means that when the district judge that reads your petition has to be satisfied that you find the behaviour unreasonable. You can use examples such as 'he didnt pay me enough attention', 'he worked late'.
To petition for divorce - you need to complete this form:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d008-eng.pdf
The current fee is £410. Divorces are now processed in regional units. This website will help you in respect of where to send the completed form:
https://courttribunalfinder.service.gov.uk/search/
Once the court has received your form - it will then be issued and a copy will be sent to your husband.
Once your husband receives the form - he has to respond within 7 days.
If your husband does not respond - then you should have him personally served with the court papers. If he still does not respond then you can apply for decree nisi - which is the first of two decrees to be divorced. 6 weeks and 1 day after applying for decree nisi - you can then apply for decree absolute - which means that you are finally divorced.
You should not apply for decree absolute until you have resolved the issue of the matrimonial finances - I will detail more about finances for you in a moment.
If your husband responds to your divorce petition stating that he will agree to the divorce - you can apply for decree nisi.
If your husband contests the divorce - he could either choose to just contest or he could also choose to contest and cross petition (issue his own petition). Contested divorces are quite rare now. It is common practice for advice to be given that although he may disagree with the reasons you have cited for divorce - he will choose not to contest the divorce but whilst not argeeing with your reasons and reservign his right to contest the reasons if you sought to rely on the same in any other proceedings.
In relation to the matrimonial finances - The correct process for dealing with the matrimonial finances and division is to go through a process known as full and frank financial disclosure. Yourself and your husband would need to exchange full details of all assets ( including pensions) and liabilities before negotiations take place in relation to settlement. Everything is included in disclosure - all assets and all liabilities.
The normal rule for division is 50/50 however the matrimonial causes act sets out factors which could lead to a departure from this rule. A few examples are the likely earning capacity of both of you for the future, health needs etc. If your earning capacity is less than your husbands and the children are going to live with you then you should be seeking a bigger share - somewhere between 10 - 20%
You should also consider asking for spousal maintenance - if your husband is earning capacity is higher than yours.
You should consider making a referral to a specialist mediation service. They can assist in relation to the process of disclosure and also in relation to negotiations about division. One such mediation service is the National Family Mediation service. www.nfm.org.uk
If agreement cannot be reached or your husband won't engage in providing full and frank disclosure then an application would need to be made to the court. You can not make an application to the court until you have at least attempted mediation first.
It is very important that no division of any assets takes place until a court order is obtained. Even if you paid your husband some money now but you didnt have a court order - then he could still try and claim more money in the future - so dont pay anything until you have a court order.
If division is agreed without the need to apply to court then you should submit a consent order for Judicial approval prior to division and obtaining decree absolute. Not doing so could leave you open for a future claim. Claims have been entertained by the courts decades after divorce / separation - so it is important that you deal with things properly.
A Solicitor can help you draft the Consent Order to protect your position for the future.
Kind Regards
Caroline
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Customer: replied 2 years ago.

Hello Caroline,

Thank you for your response but can I ask one last question please. Would the fact that my husband insists the marriage is kept secret in order not to upset his mother be considered unreasonable conduct?

Expert:  ukfamilysolicitor replied 2 years ago.
Hello
Given that the test is a subjective one - I do consider that a Judge would accept this as a very valid reason.
Kind Regards
Caroline
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