Thank you for your patience today as I am not the fastest of typers.
The first thing I wanted to discuss with you is the abuse that you are suffering. This is not acceptable and you should not have to be in this position. I appreciate that you realise this and you are seeking help and I am glad that you GP is supportive. This may help you obtain legal aid in relation to divorce and financial matters, but I will tell you about this a little later in this answer.
I would also suggest that you seek more help and support. There are lots of domestic violence services and in the first instance have a look at the refuge service. The support can be wide ranging and can be such as a chat to classes with other ladies whom have been in similar circumstances, to even a refuge place if that was needed in the future.
In relation to your own personal protection, if your husband was physically violent again, then do report matters to the police. If the police press charges or if bail is put in place then conditions may also be put in place preventing your husband from returning home in the meantime that could provide you with some respite.
If your husband was physically violent again and the police did not take action to protect you then you should seek the urgent advice of a family solicitor, whom can provide you with advice in relation to orders from the family court such as Non Molestation Orders and Occupation Orders to protect you.
In relation to the matrimonial finances, if either of you did decide to divorce then either of you could make a claim in relation to the matrimonial finances.
The matrimonial finances is the net of the assets of both of you.
The first step to dealing with the matrimonial finances is full disclosure, so you would have to obtain the value of your pension.
Once full disclosure has taken place then discussions can take place in relation to division of assets and with a long marriage (considered to be over 5 years) then the starting point for the division of assets would be equality. The court does not look at whom has contributed what throughout the course of the marriage, which I appreciate is frustrating in your position.
The court looks at the following criteria when deciding whether or not to depart from equality:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would, in the opinion of the Court, be reasonable to expect a party to the marriage to take steps to acquire;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- The conduct of each of the parties, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard it;
- In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring (e.g. a right to your husband’s pensions).
Given what you have described to me - your husband is likely to argue that he needs a larger share of the matrimonial assets given his disability needs. I note that he is only on low level DLA and that you do believe he could work. The court would expect your husband to mitigate his position - that being get a job if he could and also seek all the benefits that he could should you separate.
In your corner, you need to argue a larger share of the assets on the basis on being the main carer for your minor 16 year old child. This child, needs his housing needs to be met.
As you can see there are arguments on both side and no two cases are ever the same. The deviation is normally around 10% for arguing a larger share, but equality really is the starting point for a long marriage and the courts main consideration will be making sure that your son's housing needs are met and if this is with you then this will be favourable for you. The court might well consider that selling the housing will not meet your child's housing needs right now as there would not be enough equity to buy another propety and therefore the house should not be sold and the equity should nto be split until your son reaches 18.
If you do decide to go ahead with divorce then you should consider mediation in respect of dealing with the matrimonial finances. This is a way of trying to reach agreement without the need for court. There are lots of mediation services and there will be one local to you. Just google family mediation in your area and give them a call to get the ball rolling.
Mediation is a prerequisite before you can apply to court, but if you have been a victim of domestic violence then you do not have too. You may still want to attempt mediation as it can save you the legal fees if you want to be represented at court. Speak to your loal service as they may have measures to protect you from being manipulated by your husband during the process such as separate sessions.
If agreement can be reached at mediation then a consent order shoould be submitted to the court for approval when applying for decree absolute. If agreement cannot be reached at mediation then then mediator will sign the form that you need to apply to court and then the Judge will decide who gets what. Either way, do not divide any assets until eitther a Judge has approved a consent order or a Judge has made an Order deciding the split, to divde before means that the matrimonial finances have not been legally finalised and a further claim could be made in the future.
I mentioned before about legal aid as this is still possible to obtain when you have been a victim of domestic violence and also subject to your means. I note that your husband hasnt previously been charged but you have spoken to your GP. Ask your GP to fill in this letter referring you to a domestic violence service. Once completed take this to your local legal aid solicitor and ask for a free legal help assessment so they can check your means. The equity in your property will not provent you obtaining legal aid as the legal aid agency allow allowances for equity which yours is less than. The solicitor will check your income position and take off what you pay in the mortgage and allowances for your children.
If you qualify you can be assisted in relation to divorce and the finances. Legal aid is not free and you may have to pay back from your settlement but it is a lot cheaper than private rates and the quality of work is the same.
Let me know if I can help you further
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