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Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34902
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Details: My wifes age: 40 (South African) My age: 51

Customer Question

My wife’s age: 40 (South African)
My age: 51 (British)
Female b.1992 Father unknown (adopted by me) (UK)
Male b. 1994 Divorced from father (adopted by me) (UK)
Female b. 2002 Still married (I am the biological father) (UK)

The following is a chronological account of my wife’s recent “movements”
April 2000 married South Africa
2007 Alcohol rehab (wife)
August 2009 Entered UK as family
December 2009 Returned to South Africa alone
March 2010 Returned to UK alone, address unknown
April 2010 Returned to South Africa alone
May 2010 Returned to UK, address unknown
June 2010 Returned to family address
April 2011 Moved to Binnes Way with unknown male
November 2011 Moved into own flat (rental).

After moving to the UK in 2009, my wife quickly displayed the same behaviour as in South Africa which would not be deemed reasonable in a marriage. After several threats to harm/kill me in front of the children, I agreed to buy her a ticket back to South Africa – she did not indicate that she wanted to return to the UK so I gave her a one way ticket. She returned in March 2010 living at an unknown to myself, address in London. She returned t South Africa in April and then returned to the UK in May, again living at an unknown address. She returned to the family (my) address in June. After starting employment, she moved out in April to an address approx. 500m from the family home together with a male whom we were told was homosexual – this later transpired to be incorrect in that he is straight. During this time she was required to complete her ILR application to the UKBA. I refused to sign the application as I was only presented with the final page of the application for signature and had no way of knowing how the rest of the form was filled in.
Our marriage has had many problems over the years of which all are related to her alcohol abuse and inability to stay within the boundries of a normal marriage. The move back to the UK was financially driven but was also meant to give the marriage a fresh start.
In June 2012, I received a letter from the UKBA stating that her application for ILR had been rejected and her right to work was immediately withdrawn.
She is now awaiting her case/new application based on family rights to be processed by the UKBA.
She is still living in her flat but faces eviction next week. I have helped her as much as I can financially with food and some bill-paying. It is very important that she regains her right to work and with that, permission to remain in the UK.
Initially, all three children remained with me. However, when she moved into her flat, our son moved in with her and briefly returning to me due to arguments with her (his mother) before returning to her again in January this year. Our two girls are still living with me and have no desire to move in with their mother.
We have been separated on and off for three years and six months, living together for approx. twelve months total in that period. I cannot document the time she was living with the unknown male but can document the period from November2011 to present.
I have no assets other than small items purchased since moving back to the UK.
My questions are:
Can I apply for a divorce based on unreasonable behaviour and/or desertion?
Can I begin a new relationship without violating any rules/laws?
If not, how long would I have to wait if I should want to enter into a new relationship?
Can she claim any maintenance against me and can I claim any against her other than via the CSA for child support?
Can she claim against my pension?
How long would I have to wait if I should want to enter into a new relationship?
Submitted: 5 years ago.
Category: Family Law
Expert:  Clare replied 5 years ago.
Thanks for using JustAnswer. My name isXXXXX will do whatever I can to answer your question
1. yes you can issue a divorce petition based upon her Unreasonable Behaviour.
2. You are free to have whatever relationships you wish - if you have a sexual relationship prior to Decree Absolute then it is technically adultery but that will not make a difference to the legal or financial position
3. Technically she can claim spouse maintenance but it is unlikely that a court woudl make such an order. There is no realistic possibility of your getting maintenance from her.
4. Yes she has a potential claim on your pension
Clare and other Family Law Specialists are ready to help you
Customer: replied 5 years ago.

Thank you for your repy.

I have just a few follow up questions:

re your answer #2, is the reason that it would not make any difference because of the fact that she "stepped outside" the marriage first?

re #4, the pension I earned in South Africa was all cashed in and used to finance the move back to the UK. On what part of the pension that I started in the UK would she have a claim to - during the period we were still together in the UK or a percentage of the pension I receive when I retire regardless of how long we have been together in the UK?

My eldest daughter will be twenty one this year and is a good role model to her sister which is the exact opposite of her mother and her brother. Is there a possibility of her gaining custody of our ten year old and how much difference does it make that her sister is still living at home and helping me?

Expert:  Clare replied 5 years ago.
1. No it is because the issue of who divorces who and why is irrelevant to finances or children issues unless extreme violence is involved
2. Her claim will be based on the period of your marriage - unless the new pension is substantial it is unlikely that her claim will have much value
Customer: replied 5 years ago.

Hi, In my previous follow up question, you did not comment on my question regarding custody of our ten year old?

re the pension: does that mean she will only have a claim to my new pension or will she be able to claim on the old pension as well which was cashed in four years ago and used to finance the move to the UK?

I presume she would not have any claim on my present pension scheme after the date of the divorce?

Expert:  Clare replied 5 years ago.
If the old pension was cashed in and spent them it is no longer available
So far as Residence is concerned the fact that your daughter has lived with you now consistently for some time is your strongest argument for the child remaining with you - the whereabouts of her adult siblings is not particularly relevant