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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 16080
Experience:  I have been practising for 30 years.
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My friend is divorced and lives with her 2 minor children

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My friend is divorced and lives with her 2 minor children and has a terminal illness. Since her divorce she has received some maintenance from her exhusband for the children but there have been no other financial arrangements. She is now worried that he may have a claim against her estate notwithstanding she wants all to go I trust for their children. Does it make a difference if he takes on full time guardianship of their children
JA: What steps have been taken? Have any papers been filed in family court?
Customer: No
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: Both live in Kent but she is not thinking of going to court, just needs to know what her legal position is and whether by her will or by setting up trusts she can ensure her trustees control how her estate is distributed to her children
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Assets of my friend will be her house where she wants the children to continue to live and if exhusband takes on guardianship he can live rent free. He currently lives in rented accommodation

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

why did they not get a financial settlement?

how long ago were they divorced?

how old are the children?

Customer: replied 7 months ago.
They divorced some 2 years ago. No settlement as my friend not represented. Children aged 8 and 10
Customer: replied 7 months ago.
I need to know what your additional charges are before agreeing a call
Customer: replied 7 months ago.
Can I call you in about 30 minutes as I am out shopping now. What is latest I can call?

I can call you whenever you like although my time is limited over the weekend but I’m still available from time to time.

If your friends X wants to make a claim after divorce and they have no financial order, he has to make an application to court for consent to make an application out of time.

If there has been a change of circumstances and he feels that he should have some of this money from your friend, then it is possible that he can make a claim.

Impoverished spouses have come out of the woodwork years after the event and made substantial claims as you will read here

and here

If however she transfers all her assets to her children on trust for them when they reach 18, it makes it more difficult for him to get his hands on them. Firstly, it’s not guaranteed to work completely because if it is done to prevent him getting his hands on the money, he can say that it was only done so that it was put beyond his reach.

I don’t know what her prognosis is but she can always make sure that everything in her will goes to the children and it could well be that she sadly passes away before any application that the ex-husband were to make would even be in court.

He could potentially bring a claim under the Inheritance (Provision for Family & Dependents) act if she has not made financial provision for him and he had a reasonable expectation that she would do so although if they are now divorced, he does not have a good claim in respect of that.

If he has been given the right to live in the house for life, that is probably about as much as he could ask for. If I were advising the husband and I was told that his late wife had died and left everything to the children but left him the right to live in the property for life and thereafter to the children, I would tell him it was quite a good deal and that he should go along with it.

In circumstances like this, with the deceased mother and all the assets left of the children, I don’t think court judge would have a lot of sympathy if he was just looking after his own interests.

Can I clarify anything else 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.

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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.


Customer: replied 7 months ago.
Thanks that is helpful but if I can just take it a bit further. It is not proposed that the ex gets the right to live in the house for life, merely a licence to do so while the boys are minors. The house was initially bought in joint names with joint contributions but after a short time living there when the boys were 3 and 1,the ex left home leaving mum with no financial support and she has since paid the mortgage and her life policy will cover it on her death.When the ex was in debt on basis that mum paid it off the ex transferred the house to mum’s sole name. So what mum wants to do is leave the house in trust to trustees for her boys without ex getting any share of the house or the other life insurance policies.
Mum had supported herself and the boys with in recent years after litigation £400 a month maintenance for the children. He lives in rented accommodation with his partner and her son, both considered bad influences on the boys.
What could the ex claim from the mum’s trustees, surely only sums the trustees agreed was in the best interest of the boys?

For life or until the youngest child reaches 18. To be honest, it would be normal to be until the youngest child reached 18 and then it would be sold but the ex-would have a reasonable expectation of something from the house simply by virtue of the fact that they were married and he had contributed it all those years UNLESS he was living in it rent and mortgage free in which case that has a value which it could be argued would negate any financial claim he has.

By all means put the house in trust for the children, but that doesn’t necessarily defeat his financial claim he wants to bring. Whether it’s successful or not is a different thing altogether.

F E Smith and other Law Specialists are ready to help you
Customer: replied 7 months ago.
Thanks. Your advice has been helpful and I will give you top rating. This format is obviously a bit limited and maybe I wiould like to call you later this week. Would that be possible and if so what should I do? It still seems curious to me that an ex husband who has received no financial support from his former spouse since their divorce during their lifetime can expect to receive something from the estate which reduces the benefit their children can receive.