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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10817
Experience:  I have been practising for 30 years.
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Dear Jo, My brother has just had a serious colon operation,

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Dear Jo,My brother has just had a serious colon operation, he left hospital yesterday & returned home, his problem is that his wife is an abusive alcoholic & I am very, very concerned that she might start to abuse him when she drinks, he is physically & emotionally very vulnerable, & I really fear for his safety.My Question to you, if he left the marital home to recuperate somewhere else, would this be considered him abandoning the marital home, if he returned to the marital home after he has recuperated & gained his strength, could she stop him gaining entry to his home, i.e she had changed the door locks.He will be seeking a divorce when he gains his strength, how can he insure that she does not empty their joint bank account.?My brother said “ it is very likely she will go crazy when he broaches the subject of divorce & will very likely damage the marital home in anger & revenge.”Would his wife have the costs of the damage she caused taken out of her share of the divorce settlement?His wife is 51 years, my brother is 60 years, would her abusive behaviour qualify as elder abuse, they have been married 27 years.Thank youAnne

Good afternoon - I will assist you with your question but need some more info - I apologise if delay in replying

Where is he at the moment?

has she already changed the locks?

what is his preferred outcome - house sold or move back in and she move elsewhere?

Customer: replied 1 month ago.
Hi Jo, it clearly states in my email that he is currently at home, in relation to the locks he has not left. The house yet
Customer: replied 1 month ago.
Hi Jo, I have been waiting for a response from you for 80 minutes

I apologise for the delay in getting back to you. This is not a chat service but an online reply board and we have the users and clients and travelling et cetera and therefore we may be delayed getting back to you.

This is the marital home and your brother is free to come and go as he likes. If he wants to go and recuperate somewhere else and return in weeks or months time, he is quite entitled to do so.

If they get divorced, he is exactly the same financial interest in the property whether he lives in it or doesn’t live in it or simply moves out for a period of time.

She is not entitled to change the locks and if the house is in joint names he is entitled to use locksmiths to get in or to break in and charge her for the cost if she will not give him a key. If he is doing that, he doesn’t want her to allege violence so he would be well advised to visit the police 1st to pre-empt that and show the police this reply from an online solicitor.

Alternatively, he can make an application to court to compel her to allow him back in and to give him a key.

He can either empty of the joint bank account which puts him in control or take 50% out or tell the bank that there is a dispute over this account and ask them to freeze it. Before doing that, he needs to open another account otherwise he will be without banking facilities because nowadays opening a bank account is like trying to get an audience with the Queen!

In respect of any damage she occasions to the property he can ask for that to be taken into account in the divorce settlement.

In respect of abuse, it’s nothing to do with age. It’s to do with vulnerability and if he would be deemed to be a vulnerable adult, then it’s a matter that needs to be referred to social services.

He certainly has grounds to divorce her unreasonable behaviour and if he suspects that she is going to damage the house, he could apply to court for an occupation order to make her move out and a non-molestation order to prevent her coming within say, 100 m of her, under threat of arrest

Can I clarify anything for you?

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

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! Opinion, (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

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

Best wishes.

FES.

Customer: replied 1 month ago.
Hi thanks for your response, we have been gathering information of the abuse, recording telephone calls etc, would the telephone calls have to be transcribe, so we have these in written format if she fights the case?

I can’t see what she’s going to fight. If he divorces her based upon even just what you have told me, he will get the divorce.

In any event, the court does not apportion blame when it comes to dividing the marital finances.

It’s not illegal to record someone’s voice although it is illegal to use it for commercial purposes.

The rule with regard to illegally obtained evidence changed some years ago. It is now admissible if it’s in the interest of justice to do so.

If she vehemently denies having said something but you even tell you that you have a and let her hear it even if the matter never goes to court, it’s unlikely that she is then going to deny it!

It’s always a good idea to have a transcript even if the tape is available because the last thing a judge would want to do is listen to a whole tape (showing my age now-I should just say I whole recording! Tapes are obviously a thing of the past!!) and he would only want the relevant part. Without listening to the recording he is likely to accept what was said.

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