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Help. Husband left but not proceeding with divorce

(12 Posts)
Tanya2011 Mon 05-Nov-12 13:34:17

Hello and thank you for looking at this post.

Any ideas welcome.

A friend of mine's husband left her three years ago. She has four children, three over the age of 18 and a three year old all living at home.

Her husband went off with someone else and that person has two children. The husband lives with that person.

The husband currently visits the family home twice per week. Two of the elder children won't speak to him and lock themselves in their bedrooms when he visits. My friend the mother goes out when he is there.

The husband left but has not appointed a solicitor. My friend went to a solicitor and when the husband received the papers he apparently sent them back saying that was not what he wanted. There is no formal support arrangement in place for my friend and her children but the husband gives some money about once per month. My friend does not work again yet so she is totally reliant on his payments. But it has now got to her needing to ask him for money every month which is causing her lots of stress and there is no formal support arrangement.

My friends solicitor has most recently told her that she needs to prepare a list of eight to ten reasons why the divorce should happen, sorts of reasons / grounds. Now she says it just time until the divorce happens. But there is no formal arrangement about anything.

The family home is worth about £700,000 now as it was almost completely rebuilt from what was there. But there is almost nothing paid off from the original mortgage as it is interest only so there's up to £500,000 mortgage to pay off leaving equity of about £200,000.

My friend now has a boyfriend and he has said she can live with him with her three year old. His place isn't any bigger than that. He (divorced) wants to remarry with her when the time is right for them. She says that her elder children would probably be made homeless when the divorce happens and they would need to find themselves a flat each. She does not know what will happen and she is very worried.

What should she do now?

Any ideas welcome, thank you.

Thank you for looking.

izzywizzyisbizzy Mon 05-Nov-12 13:38:15

Who is paying the mortgage? Bills? What do the older children do?

babybarrister Mon 05-Nov-12 13:46:58

She needs to get on with bringing proceedings herself - it is irrelevant whether he likes them or not - that is for the court to decide. If he nicks around and does not accept service, the court can make orders deeming there to have been good service. As over 2 years have passed since seafaring theycan divorce on those grounds if he agrees

Tanya2011 Mon 05-Nov-12 15:03:46

Thank you for your reply.

(And izzywizzyisbizzy thank you for your enquiry, elder kids work part time or full time, mother still homemaker and reliant on support from father, money, mortgage and all).

When she brings proceedings, what will happen probably? What will happen to the home? If it gets sold, what support if any would the elder children receive, if any?

Thank you again for your reply.

Tanya2011 Mon 05-Nov-12 15:06:58

....sorry, and by seafaring, is that meaning the time at which he went?

olgaga Mon 05-Nov-12 15:33:33

I think predictive text must have turned that into "seafaring" which is a novel way of describing separation.

What BB means is there is no need for a list of reasons - has it not been made clear to your friend that a two year separation is grounds for divorce?

Your friend might find this useful:

Relationship Breakdown and Divorce – Advice and Links

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

If there are children involved, their welfare, needs and interests 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
www.direct.gov.uk/en/Dl1/Directories/UsefulContactsByCategory/Governmentcitizensandrightscontacts/DG_195356

Or search in your area for Community Legal Advisors:
legaladviserfinder.justice.gov.uk/AdviserSearch.do

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/

You will also read good advice and find a family lawyer 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.

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/

DirectGov advice on divorce, separation and relationship breakdown:
www.direct.gov.uk/en/Governmentcitizensandrights/Divorceseparationandrelationshipbreakdown/index.htm

Legal Rights and issues around contact are further explained here:
www.rightsofwomen.org.uk/legal.php#children_relationship_breakdown
www.maypole.org.uk/

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?

If you have no access to 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. 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 (follow the Direct.gov links below). This seeks financial information from both parties 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 for Women – 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 there is usually an appropriate link on these websites for England, Wales and Scotland where the law, advice and contact information may differ.

RugBugs Mon 05-Nov-12 15:41:49

If he has already returned papers I assume he will not consent to a divorce and your friend will have to wait to have been separated for 5 years to do it without his consent.
I'm in exactly the same position myself, lord only knows what apart from money he hopes to gain from refusing consent.

Tanya2011 Mon 05-Nov-12 17:26:03

Dear olgaga,

Thank you very much for your lengthy reply. I will look at this all asap.

(RugBugs thanks for your comment.)

If either man or woman in a marriage buzzes off with someone else then that will surely be the adultery ground for divorce which is a separate ground than the two years or five years grounds, right?

olgaga Mon 05-Nov-12 18:49:33

Well yes - it's up to your friend really whether she wants to do that. Either or both would be valid grounds for divorce.

I'm not sure what you mean by "when the husband received the papers he apparently sent them back saying that was not what he wanted". It's not really feasible to decide he doesn't want a divorce - do you mean he is not agreeing the financial aspects or the arrangements for child residence/contact ?

What does her solicitor say?

RugBugs Mon 05-Nov-12 21:21:19

My understanding (this area of law is not my specialty) is that you can petition for divorce within six months of separation if the other party has behaved unreasonably. Also, you can only petition on the grounds of adultery within six months of finding out about it
After that six months deadline if the other party is being an arse and will not agree to a divorce you have to wait 5 years after date of separation.
It's a pain in the arse.

Tanya2011 Tue 06-Nov-12 23:12:25

Dear olgaga,

Thank you for your reply. She is in the house and for now is ok with him paying some money without a formal arrangement. She is seriously concerned that if she agrees to take the matter to court to formalise everything then the home will be a forced sale, her three elder children will be uprooted involuntarily, and she has no idea of how much she will have then for accommodation for her and her three year old nor if she can help out her three adult (over 18) children. So lots of reasons to keep the status quo.

Why has her solicitor not said to her to take the matter to court already? Just saying she needs to prepare eight to ten reasons?

------------------------
Dear Rugbugs,

Thank you for your comments. Is that sure about the adultery ground, six months limit? So then it would be two years with agreement, then five years.

Did you find these details somewhere? There's a long post above with links where there is very probably the details but if you had a direct link?

Collaborate Wed 07-Nov-12 01:17:03

The 6 month rule is not as described by Rugbugs.

If you live with someone for 6 months after finding out about adultery then you cannot use that adultery as a ground for divorce. Adultery here is a single act of sexual intercourse - not to be confused with finding out that your spouse has formed a new relationship. If the relationship continues you can treat each day practically as a new ground for divorce.

If you find out your spouse has commuted adultery and after 5 months you realise you can't stay with them you can use the adultery ground whenever you want - to use an extreme example you can wait 20 years.

The 6 months re unreasonable behaviour is that the behaviour must mean that you can't tolerate living with spouse. If you then live with them for 6 months, it's assumed that the behaviour is not that bad after all.

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