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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17249
Experience:  I have been practising for 30 years.
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My wife and I are separating and she wants a divorce. We

Customer Question

Hello, my wife and I are separating and she wants a divorce. We still live together with kids. I don’t want to seperate or divorce. We have two children 8 and 10 and she wants to financially separate now, paying half of bills and food etc. She earns twice what I do and I am the home carer doing everything. Is this fair? She can save a lot and I can save nothing this way. Thanks.
JA: What steps have you taken? Have you filed any papers in family court?
Customer: No nothing at all. She has seen a solicitor a few days ago who told her to sleep in a separate room and not to share meals etc. The children don’t know. I left my job to be a full time dad last year and get 1100 a month pension. She gets 2100 a month take home.
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county do you live in?
Customer: Devon. I’d like to know if what she is doing is legal and fair please
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no thanks
Submitted: 12 days ago.
Category: Law
Expert:  F E Smith replied 12 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

for background -

how long have you been together and married in total?

is the home mortgaged? if so in who's name(s)?

what is your preferred outcome if possible please?

Customer: replied 11 days ago.
Hi,
We have been married for almost 7 years and together for almost 17 there is no mortgage and it is in joint name.Thanks
Expert:  F E Smith replied 11 days ago.

The problem for you is that if you don’t want to get divorced, and she does and she petitions you, it’s going to happen anyway although if she wants to get divorced on the grounds of 2 years separation, it’s very difficult to prove to a court that you were legally separated if you are still living in the same house.

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 wants it.
Lack of personal hygiene/obsessive personal hygiene.

Obsessively tidy/extremely messy and untidy.

Gambles to excess/is tightfisted with money.

Never interacts with spouse or children/obsessive with children.

Violent or bullying or intimidating.

Excess alcohol.

Lots of grounds.

If you are getting divorced on the grounds of two years separation and living in the same house you literally have to share nothing. Virtually be like separate lodgers in the same house.

The potential problem for you in respect of income is that the courts will not normally get involved in marital finances unless you have started divorce or legal separation proceedings and I appreciate that you don’t want to do that but if you don’t, she will all be it that she may want to wait two years.

Having said that, it’s not difficult for her to put together a petition for unreasonable behaviour. It doesn’t have to be a character assassination.

The court will not get involved in marriage and finances unless divorce or legal separation proceedings have started.

As part of the divorce process, it is always a good idea 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 the ex-spouses coming back to the other, in some years time, asking for more money if circumstances have changed (the lottery?).

Strictly speaking, one of the parties should do that before they get the Decree Absolute otherwise there going to have to explain why the delay.

It would be treated as a 17 year relationship and unless there is a compelling reason otherwise it means that the assets are going to be split close to 50-50.

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.

With regard to the marital home, a lot depends on who is going to be the main carer of the children until they reach 18. 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 non-resident parent would be responsible for child maintenance at the CMS rates which are here

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/672432/how-we-work-out-child-maintenance.pdf

Do read the whole document but the basic rates start at the top of page 18.

Child maintenance is reduced by 1/7th for each 52 nights that the non-resident parent has the children.

There is a possibility of a liability for spousal maintenance, maintenance paid to keep a spouse , as opposed to children. Although most commonly paid from husband to wife, that is not necessarily the case. Spousal maintenance is based on both incomes, ability to earn money, previous lifestyles and most importantly, need. It is not about equalising incomes. There is no exact formula, but these links will give some reading..

https://www.blbsolicitors.co.uk/blog/spousal-maintenance-how-much-and-for-how-long/

and

http://www.familylawweek.co.uk/site.aspx?i=ed33597

and

https://family.findlaw.com/divorce/questionnaire-are-you-entitled-to-alimony-spousal-support.html

And here is an interesting and informative article with regard to the division of finances in general (don't worry about it no longer being updated)

https://www.lawteacher.net/cases/financial-matters-on-divorce.php

And finally, here is an article what happens to inheritance in the event of a

divorce:

http://www.marilynstowe.co.uk/2011/05/18/what-happens-to-an-inheritance-in-the-event-of-divorce/

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

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

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

You don’t need to do it on this thread, just a new thread. You have me exclusively on this one.

Thank you.

Best wishes.

FES

Customer: replied 11 days ago.
Thank you very much you have been incredibly helpful. One last question please.... my wife says that she needs to stay to ensure that she has rights to see the children and is not seen as deserting. Otherwise she would move out to rented accommodation. I don't want her to move out but I am happy that if she were to move out on her own choice that I would grant her 50/50 custody and access as it would be best for the children. If I said this would I be weakening my position with regards ***** ***** own 50% custody or financial matters? We have roughly agreed how we may separate financially but I don’t want to compromise my position as a dad who wants 50/50 custody or financially (I may be able to buy her out of the house with a nominal sum of £60k : half savings and half mortgage) as she can be rather cunning in the long term and getting her way. Thank you very much.
Expert:  F E Smith replied 11 days ago.

I can’t see that that weakens your position either in respect of the children or financially. As you say, you are just doing what’s in the best interest of the children even if you are only saying that you are doing it temporarily while things get sorted.

The less argument you have, the more you are seen to be reasonable and that is always good in the eyes of the court.

So I wouldn’t worry about what you are proposing.

Customer: replied 11 days ago.
Thanks so much for your help.
Expert:  F E Smith replied 11 days ago.

No problem at all. I am really glad to help. Come back to me at any time if anything else needs clarification. Kind regards