Legal advice please re separating

(3 Posts)
jenny99 Sat 01-Dec-12 12:56:17

I have a question please. I'm not sure how to find a good local lawyer so any advice would be great re that too.

I need to talk to my husband again about separating, which he is not keen to do. I have been a sahm for 15 years and he is a high earner...we both feel if we do separate it would be less disruptive to the kids for him to move out. And probably just in general more sensible. ie I continue my 'job' and he his.

If i tell him I have had an affair which I haven't yet told him - I feel he should have the facts to make an informed decision of what I have done, and I have made my bed and must lie in it..... does that affect my rights? He obviously has a greater earning capacity than me. I'm not after his money or trying to 'take him for every penny' but there are various problems in our marriage which need addressing and whether or not we stay together needs to be worked on by both of us.

Does the fact I have had an affair give him the legal right to throw me out and him 'keep' the kids?

I'm not meaning to sound callous I'm just realising that it is probably fairer to him to be honest and he can then understand where my feelings are coming from but I do want to make sure I know where I stand legally.

Thank you.

olgaga Sat 01-Dec-12 20:37:24

Hello, I will post you the version of this information which isn't the latest but unfortunately my shiny new post has problems with formatting and hyperlinks! If you would like the brand new up to date version do PM me.

Your husband has no right to throw you out and "keep" the kids - just as if he had an affair. So please don't worry. But I wouldn't tell him if I were you. Not all of this will apply to you but some of it will, and it will put your mind at rest I hope:

Relationship Breakdown and Divorce – Advice and Links (V4 Nov 2012)

It is useful if you can get to grips with the language of family law and procedure, and get an understanding of your rights, BEFORE you see a solicitor. If you are well prepared you will save time and money.

Children

The welfare, needs and interests of children are paramount. Parents have responsibilities, not rights, in this regard. Shared residence means both parties having an equal interest in the upbringing of the children. It does not mean equal (50/50) parenting time - children are not possessions to be “fairly” divided between separating parents.

A divorce will not be granted where children are involved unless there are agreed arrangements for finance, and care of the children (“Statement of Arrangements for Children”). It is obviously quicker and cheaper if this can be agreed but if there is no agreement, the Court will make an Order - “Residence and Contact” regarding children, “Financial Order” or “Ancillary Relief” in the case of Finance. Information and links to these can be found in the Directgov link below. Residence and Contact Orders are likely to be renamed Child Arrangements Orders in future.

Always see a specialist family lawyer!

Get word of mouth recommendations for family lawyers in your area if possible. If you have children at school, ask mums you are friendly with if they know of anyone who can make a recommendation in your area. These days there are few people who don’t know of anyone who has been through a divorce or separation – there’s a lot of knowledge and support out there!

Many family lawyers will offer the first half hour consultation free. Make use of this. Don’t just stick with the first lawyer you find – shop around and find someone you feel comfortable with. You may be in for a long haul, so it helps if you can find a solicitor you’re happy with.

If you can’t find any local recommendations, always see a solicitor who specialises in Family Law.
If you take legal action to protect yourself or your family from domestic violence, you may qualify for legal aid without having to meet the normal financial conditions. The income of an abusive partner will not be taken into account when deciding whether you qualify for legal aid.
You can also find out about Legal Aid and get advice on the Community Legal Advice Helpline on 08345 345 4 345
https://www.gov.uk/community-legal-advice
Or search in your area for Community Legal Advisors:
legaladviserfinder.justice.gov.uk/AdviserSearch.do
Here is the Gov.uk guide to divorce which includes a link to CAB advice at the foot of the first page:
https://www.gov.uk/divorce

Rights of Women have a helpline on 020 7251 6577 and helpful advice on their website.
www.rightsofwomen.org.uk/adviceline.php

Co-operative Legal Services offer DIY/Self-Help Divorce packages, as well as a Managed Divorce service. Their fee structure is more transparent and they have a telephone advice line as well as offering really good advice on their website:
www.co-operative.coop/legalservices/family-and-relationships/

You can read advice and search by area for a family lawyer here:
www.resolution.org.uk/

and here:
www.divorceaid.co.uk/

Some family law solicitors publish online feedback from clients – Google solicitors to see if you can find any recommendations or feedback.

Mediation

You will be encouraged to attend mediation. This can help by encouraging discussion about arrangements for children and finance in a structured way in a neutral setting. However, it only works if both parties are willing to reach agreement.

If there has been violence or emotional abuse, discuss this with your solicitor first. Always get legal advice, or at the very least make sure you are aware of your legal rights, before you begin mediation. This is important because while a Mediator should have knowledge of family law, and will often explain family law, they are not there to give tailored legal advice to either party - so it’s important to have that first.

You can find a Mediator here:
www.familymediationhelpline.co.uk/find-service.php

Married or Living Together?

This is a key question, because if you are married, generally speaking you have greater protection when a relationship breaks down.

Legal Issues around marriage/cohabitation and relationship breakdown are explained here:
www.adviceguide.org.uk/england/relationships_e/relationships_living_together_marriage_and_civil_partnership_e/living_together_and_marriage_legal_differences.htm#Ending_a_relationship

www.advicenow.org.uk/living-together/

Gov.uk advice on divorce, separation and relationship breakdown:
https://www.gov.uk/browse/births-deaths-marriages/marriage-divorce

Issues around contact are further explored here:
https://www.gov.uk/parental-rights-responsibilities
www.rightsofwomen.org.uk/legal.php#children_relationship_breakdown
www.maypole.org.uk/
www.cafcass.gov.uk/media/2909/TimeforChildren.pdf

I found these guides from law firms quite informative and easy to read – there are others of course:
www.family-lawfirm.co.uk/uploaded/documents/Surviving-Family-Conflict-and-Divorce---2nd-edition.pdf

www.terry.co.uk/hindex.html

Finance

Before you see a family law solicitor, get hold of every single piece of financial information you have access to, and take copies or make notes. Wage slips, P60s, tax returns, employment contracts, pensions and other statements – savings, current account and mortgages, deeds, rental leases, utility bills, council tax bills, credit statements. Are there joint assets such as a home, pensions, savings, shares?
There is a useful divorce and separation calculator here:
https://www.gov.uk/money-property-when-relationship-ends

If you cannot access financial information, or you are aware that assets are being hidden from you, then obviously you will not be able to reach agreement on finances. Again you will be encouraged to go to mediation (link as above).

If there are children, as you cannot divorce without adequate arrangements being agreed on finance and children, you will have to apply for a financial order anyway.
If there are no children, and you are unable to agree on finances, you will also have to apply for a financial order.
During this process, parties have to declare financial information going back 12 months. So it is in your interests to act quickly once you have made the decision to divorce.

If you are married, the main considerations of the Family Courts where parties are unable to agree a settlement are (in no particular order of priority):

1.The welfare of any minor children from the marriage.
2.The value of jointly and individually owned property and other assets and the financial needs, obligation and responsibilities of each party.
3.Any debts or liabilities of the parties.
4.Pension arrangements for each of the parties, including future pension values and any value to each of the parties of any benefit they may lose as a result of the divorce.
5.The earnings and earning potential of each of the parties.
6.Standard of living enjoyed during the marriage.
7.The age of the parties and duration of the marriage.
8.Any physical or mental disability of either of the parties.
9.Contributions that each party may have made to the marriage, either financially or by looking after the house and/or caring for the family.

CSA maintenance calculator:
www.csacalculator.dsdni.gov.uk/calc.asp

Handy tax credits calculator:
www.hmrc.gov.uk/taxcredits/payments-entitlement/entitlement/question-how-much.htm#7

Handy 5 Minute benefit check, tax and housing benefit calculators:
www.moneysavingexpert.com/family/

CAB Benefits Check:
www.citizensadvice.co.uk/getadvice/benefit-calculator/A2B-Benefit-Calculator/#730

Parenting issues:
www.familylives.org.uk
www.theparentconnection.org.uk

Other Support – Children, Housing, Domestic Violence
www.womensaid.org.uk/ and refuge.org.uk/ - Helpline 0808 2000 247
www.ncdv.org.uk/ - Helpline 0844 8044 999
www.gingerbread.org.uk/ - Helpline 0808 802 0925
Housing www.england.shelter.org.uk/get_advice/families_and_relationships/relationship_breakdown
(Note that on many advice websites there is usually an appropriate link for England, Wales and Scotland where the law, advice and contact information may differ).
Sometimes links change or break – if there is a problem or any of the above needs updating, please let me know.

STIDW Mon 03-Dec-12 03:26:03

Conduct very rarely has any effects on the financial settlement and with children it's their interests that are paramount and continuity of care is important. You might find Relate helpful too. Their counsellors can help you decide whether to tell your husband about the affair or not and then if you attend together you can work on communication which may help you separate with dignity.

A good starting point to find a solicitor is the website of the family law organisation, Resolution, or Chambers independent guide to law firms. You need to satisfy yourself as to whether you think the solicitor can do a good job in your particular case. That applies to personal recommendations too because they are subjective. Just because someone was satisfied it doesn't necessarily mean the solicitor will be right for you. Conversely just because someone was unhappy with a solicitor it doesn't mean you will be.

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