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F E Smith
F E Smith, Advocate
Category: Family Law
Satisfied Customers: 16966
Experience:  I have been practising for 30 years.
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Our son (49), married for 18yrs; his wife with four children

Customer Question

Our son (49), married for 18yrs; his wife with four children is now living separately and pursuing a "no fault" divorce although he would prefer to remain together. Is there a website which spells out the basics of the legal steps and an outline on how a financial settlement is calculated?
JA: What steps have been taken? Have any papers been filed in family court?
Customer: I don't think so but without prior warning my daughter-in-law's solicitor has asked for a financial assets statement from my son.
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county does he live in?
Customer: Reading Family Court (?), but lives in Henley, Oxfordshire
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No
Submitted: 7 months ago.
Category: Family Law
Expert:  F E Smith replied 7 months ago.

Good morning. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

how old are the children?

is there a mortgaged marital property?

what is his job? hers?

pensions?

Customer: replied 7 months ago.
Children: 18, 15, 13, 6yrs. No mortgages, two family properties (living in both); neither have jobs but son has income (c£20000 pa) from family partnership; no pensions.
Customer: replied 7 months ago.
nil
Expert:  F E Smith replied 7 months ago.

This is not an uncommon question and I have what is in effect a concise complete do it yourself guide:

Provided that at least one of the people wishing to get divorced lives in England, then getting divorced in England (& Wales) is infinitely a do-it-yourself job. (I am not familiar with the system in Scotland)

Save yourself a whole load of money: the government website have a do-it-yourself guide

https://www.gov.uk/divorce

Although you can agree finances between you, it doesn’t draw a line under it unless you have a financial order

https://www.gov.uk/money-property-when-relationship-ends

And if have children under 18, and you cannot agree who they live with and who sees who and when, then you need a child arrangement order (which includes Specific Issue Orders:

To confirm that something can happen

and a Prohibited Steps Orders

To stop something happening

https://www.gov.uk/looking-after-children-divorce

In the United Kingdom, we do not have “irreconcilable differences”. That is a thing in the United States for the time being at least. The rules are changing here shortly to get rid of the following 5 grounds of divorce and to get rid of the fault issue but that has yet to be enacted. To be honest, in my opinion, it’s going to make very little difference because the big arguments are over finance and children not the actual divorce itself.

It doesn’t matter who divorce is who or why, the financial issues are exactly the same. The court has not apportioned blame with regard to the division of marital finances for many years.

Grounds for getting divorced are:

1 The couple have lived part 2 years or more but less than 5 years and they both consent to the divorce.

2 The couple have lived apart for 5 years or more, regardless of whether they both consent or not.

3 Desertion. Not common.

4 Adultery. Very difficult to prove unless there is unequivocal evidence or an admission.

5 Unreasonable behaviour. Most common and relatively easily to put together a petition on these grounds. For example:

A spouse wants an unreasonable amount of sex/never once it.
Lack of personal hygiene/obsessive personal hygiene.

Obsessively tidy/extremely messy and untidy.

Gambles to excess/it’s tightfisted with money.

Never interacts with spouse or children/obsessive with children.

Violent or bullying or intimidating.

Excess alcohol.

Lots of grounds.

As part of the divorce process, you may want to apply for a financial order:

https://www.gov.uk/money-property-when-relationship-ends/apply-for-a-financial-order

Which draws a line under the finances of the marriage and prevents either of you coming back to the other, in some years time, asking for more money if circumstances have changed (the lottery?).

Unless a sale of the house produces enough money for the parent looking after the child(ren), the resident parent, until the youngest reaches 18 and produces a surplus for the non-resident parent, the sale of the house is not on the cards until the youngest child reaches 18.

Both parents are under a duty to provide a home for dependent children until they reach 18. Only then would the house be sold.

The starting point for the division of marital finances is 50-50 and it is then adjusted up or down, one way or the other, in favour of one partner or the other depending on what the individuals put in at outset, the length of marriage and the time together before marriage, the needs of the individuals after the divorce, what savings, assets, pensions et cetera there are and also the ability of each person to work after the breakup.

The time which a couple are together before they get married will be taken into account because it would be grossly unfair if someone had been together for 30 years and then split up after being married for 12 months to have the finances treated in the same way as a couple who had got married not long after they met and were then divorcing after just 12 months.

It’s largely a mathematical thing but does look at needs after divorce.

Even if everything is being divided down the middle, it’s not really a case of dividing it down the middle, all the assets wouldn’t be split 50-50 but the bulk would be 50-50 and therefore one person may keep the house and the other for example could have the savings and the pensions.

A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

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Thank you.

If you still need any points clarifying, I will still reply because the thread does not close.

Best wishes.

FES