any pointers on divorce settlement?

[vaguelyoptimistic]

Just putting out feelers to see if anyone can help from a professional angle or from personal experience.
For various reasons, am thinking of ending my marriage of 5 year duration.
House was mine before marriage, worth around 150k. I have always paid mortgage which is now down to 50k due to my overpayments over the last 8 years and in my name only. No other assets apart from car.
H has around 40-50k in cash assets.
Both work, he earns more than me by around 15k.
I have child early secondary education who lives with us. He has 2 due to go to uni in the next year who live with mum. He is older than me and could retire if he wanted in the next couple of years. We both have pensions.
My question - simple really will i have to lose mine and dc's home in the event of divorce? I wouldnt want anything from him.
Any help appreciated - i know i need to take legal advice if i decide to go through with it but am just wondering if anyone has a similar experience.

You won't have to lose your home, but I wouldn't expect him to walk away with nothing.

Short marriage, one child of the family but no children of the union.

Mortgage reduced by £x over the course of you living together is an asset of the marriage.

Starting off point for family home is an equal division, but this will be then adjusted in your favour to take account of your initial contribution of the property. I'd say at first blush that you'd have to pay him half of how much the mortgage has come down by, but balance that by him paying you half of what he's saved during the marriage.

You need legal advice though. I'm a family law solicitor but you've now way of verifying that. Many of the responses you'll get will recount other's experiences, but you shouldn't take it as advice.

Hi VO,

I am McKenzie Friend and deal with this on a faily basis. In fact my early career started in finance.

There are many factors the court will take into account when considering dividing the marital assets. These are based on s25 MCA1973. They include such factors such as age of the parties; how long they were married; children' age of children; standard of living enjoyed by both parties etc.

With the information you've provided it would be difficult to give you full advice but based on what you have supplied I would say that you will porbably keep the home during the divorce, especially if you have children still living with you. You would also be entitled to some of his cash assets. If his pension is considerably worth more than you (and it sounds like it would be) then you would be entitled to pension-share.

There are so many more questions I'd like to ask to give you a fuller picture so feel free to PM me.

Wow thanks for your replies they are very helpful and somewhat reassuring. How do I pm someone?!

Ah ha sorted pm. Should really learn to read the instructions first :)

As babybarrister says McKenzie Friends are not lawyers. They don't have automatic rights of audience (although my personal experience shows that this isn't necessarily a problem for a litigant person and in any case it is far from unknown for it to happen).

McKenzie Friends are unregulated. Then again - it's worth considering that organisations such as the SRA or LSC are notorious for failing to take action against lawyers who fail to follow even fundamentals such as President Practice Directions in terms of bundle preparation and providing assistance to a LIP.

Some McKenzie Friends are uninsured (McKenzie13 is however).

An experienced McKenzie Friend can assist with all paperwork used in a case including bundle preparation, taking notes, provide pointers regarding a case, negotiating with solicitors, barristers and other court staff. A clear advantage (aside from cost) is they are available whenever they are needed - not just office hours. Not only that - when you represent yourself you have a vested interested in doing everything you can for your children and you know your case inside out. They'll also help you with questions for cross-examination, etc.

Even better - as a litigant in person a lawyer representing the other party has the duty to provide assist the LIP and not `take unfair advantage' of them: www.lawsociety.org.uk/advice/practice-notes/litigants-in-person/ They will usually be asked to compose the bundle for use in a contested, final or FPC hearing too. Judges/magistrates will also bear in mind that a litigant in person is not a legal professional (even when assisted by a McKenzie Friend) in a hearing.

There are also good barristers and bad barristers. They will usually cost you at least £1500 for a day and can be instrumental in a good outcome.

Actually McKenzie friends are not allowed to conduct litigation for someone. That extends to preparing court paperwork, including statements, as I understand it.

BB that doesn't surprise me in the least.

Actually McKenzie friends are not allowed to conduct litigation for someone. That extends to preparing court paperwork, including statements, as I understand it.

McKenzie Friends cannot conduct litigation, true. They can however help with case papers:

Practice Guidance: McKenzie Friends (Civil and Family Courts)

The Right to Reasonable Assistance
2) Litigants have the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-in-person. MFs have no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation.

However...

What McKenzie Friends may do
3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case papers ; iv) quietly give advice on any aspect of the conduct of the case.

(I have made bold the relevant part).

All of the above from Practice Guidance: McKenzie Friends (Civil and Family Courts)

Webpage here: www.familylaw.co.uk/system/uploads/attachments/0000/8125/McKenzie_Friends_Practice_Guidance_July_2010.pdf

`I personally know of a struck off barrister who now makes a good living as a McKenzie friend'.

Oh...I don't doubt it - not as good a living as a barrister I'd imagine though!

Apologies to the OP for hijacking her thread and I'm going to stop it now because she probably wants some advice and not discussion about the finer points of what McKenzie Friends can't do!

OP if you have this information regarding his savings I would make sure you get your own personal copies of this (if this is allowed?) should he try to say it is not true - esp. if will affect how much of a reduction he gets in relation to the house in terms of how much the mortgage has reduced.
Great advice on this thread.

Wow.

As you'll know the principle of the functions performed by McKenzie Friends is firmly established in case law and what they can and can't do is clearly detailed by the President of the Family Division.

If you feel strongly enough that McKenzie Friends shouldn't be doing what they do it's certainly something you could raise with your colleagues. But you're only going to see more of them as the imminent Legal Aid changes take effect. Certainly the courts are very appreciative of the work undertaken by many MFs and an increasing number of solicitors and barristers do too in my experience as a 'naked LIP' will only highlight this further.

Many of the solicitors I speak to express a great deal of concern that their earning potential is being damaged by the changes to Legal Aid - I can understand that because that's how they make their living. I would be worried if I were in that situation!

But when all is said and done - there are good and bad lawyers just as there are good and bad McKenzie Friends and it'd be simplistic to suggest otherwise.

But at least the lawyers have legal training, qualifications, and insurance. Also MFs can't charge for conducting litigation (which they are prevented from doing anyway)

To quote from a summary of what Nick Wall in the court of appeal said recently on the subject:

"That left the question of the McKenzie friend. It would appear that the judge had not been happy with the representative. Although the judge found that there was a possibility that the mother had been intimidated by the father's McKenzie friend, the Court of Appeal found that that was a difficult finding to sustain as the McKenzie friend had not actually cross-examined the mother. However, it would appear that the judge also felt that the McKenzie friend may have overstepped the mark by preparing a document on the father's behalf which referred to the name of a child who was nothing to do with the proceedings. Although the father conceded that the McKenzie friend had done 20 per cent of the work, he did point out that he had himself done the remaining 80 per cent.

The Court of Appeal reminded all parties what McKenzie friends may not do, as laid down by the guidance at (2010) 2 F.L.R. 962:

"MFs may not i) act as the litigants' agent in relation to the proceedings; ii) manage litigants' cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses."

In this case, the appellate court supported the view of the managing judge that the McKenzie friend had wrongly stepped "into the realms of conducting litigation". The managing judge had said that even if the McKenzie friend had done 20 per cent of the work, "it was 20 per cent too much". She had no objection to the father appointing another McKenzie friend. As far as the appellate court was concerned there did seem to be adequate reasons for the judge to have acted as she did. She had also read the curriculum vitae of the McKenzie friend and referred to the guidance laid down by the court. This was not a case management decision which the court would interfere with, notwithstanding their view that it was reached "in a swift and it must be said somewhat rough and ready way".

I had cause to use both solicitors and McKenzie Friends in my own case (contact). I sacked my solicitor before the first hearing due to their poor service. The didn't act on instruction, had no motivation to resolve the issue and told me that there was little I could do in the face of a hostile ex.

Employing a professional McKenzie Friend was a revelation: My course lurched forward rapidly and I was able to deal with everything thrown at me. By the end of the case I had double the contact that any solicitor had said was possible.

You're making much of the fact that lawyers are regulated. But it's common knowledge that the LSC and SRA are notorious for doing nothing when legitimate complaints are made against solicitors (and I am experienced enough to know the different between a legitimate complaint and an angry litigant seeking to `get revenge' on the ex's solicitor).

Recently a colleague of mine had cause to ask the Chair of Resolution how many solicitors had ever been removed from that organisation as a result of complaints....and the answer?

Zero

Regulation means nothing and it's misrepresentation to think it makes any difference. In my work as a McKenzie Friend I have yet to see compliance with bundle preparation for a final hearing. Late deadlines, refusing to admit the other party's evidence (when one party is LIP and preparation falls to the solicitor), faking emails to `prove' compliance are just a few tactics I have seen.

I am not a solicitor or a McKenzie Friend. Although in England & Wales no one has ever been removed from the family lawyers organisation Resolution at least there is a code of conduct that solicitors sign up to and the Solicitor's Regulation Authority, Solicitors Disciplinary Tribunal and the Legal Ombudsman publish decisions. Clients can use these as a benchmark when they are engaging a solicitor. On the other hand McKenzie Friends have no code of conduct, no regulation, no disciplinary tribunal and no ombudsman.

A few years ago the former chair of a well known father's group was remonstrating online that a McKenzie Friend had jeopardised someone's case by behaving aggressively towards a solicitor and was almost escorted from the premises. There was the Steve Stephenson case reported in The Times. Stephenson apparently wrote a defamatory letter to the judge trying to undermine the other side. Vicki Haigh was assisted by Elizabeth Watson who was found to be in contempt of court. Here on MN we have seen MFs telling parents not to cooperate with social service or to flee the country which is appallingly bad advice. There was also a case when a mother was "told" not to use crucial evidence of DV and a residence order granted abroad. Then there was a MF who after running down solicitors and telling everyone they would be better off with a MF, oh by the way and he was experienced and cheaper, admitted he was doing it because of the "sh*tty" deal the fathers got in court. Etc etc.

Apart from this in my experience MFs often have their own axe to grind, give poor advice and/or encourage unproductive strategies leading to unnecessarily overheating of emotions which doesn't help to settle matters in or out of court and makes matters far worse.

Not having a lawyer can be a false economy. Of course some people can not afford a lawyer but there is no reason why an articulate and organised acquaintance cannot assist an unrepresented litigant and many do a better job than a MF who charges a fee. Australian Ian Hanger the original McKenzie Friend wrote in a submission to the Scottish that a MF is confined to quietly assisting the unrepresented litigant and said "Obviously the McKenzie Friend should not be entitled to charge any fee for services." To do so in his country would be breaching the Legal Services Act.

OP, At this stage you don't need to concern yourself about representation in court. Many, if not most, separating couples come to an arrangement and a solicitor drafts it into a legally binding order "by consent."

A solicitor who has completed a degree, done several years training on the job and further training year in year out, works with the courts on a day to day basis and is regulated and insured is in the best position to advise where you stand and what options there are given your specific circumstances. Hopefully you can then negotiate an agreement between yourselves or with the help of a mediator or collaborative law which avoids the need to go to court.

Reaching an agreement between yourselves can be quicker and cheaper than inflaming the situation and fighting it out through the courts. IT can help to keep solicitor's costs down if you collect and file documents (bank, credit card and mortgage statements, pension and investment valuations etc) so they can be produced in a timely fashion. Make lists of points to raise with your solicitor to help keep focused and rest the temptation to use your solicitor as a counsellor. Relate is cheaper and you may find counselling helps to keep communication open. Relationship counselling isn't just about keeping couples together, it can help you detach the emotions from the practicalities and separate with the least aggro and dignity.

Damned iphone. Sorry for the glaring mistakes in my posts last night but the gist is there.

Lost dad if you dish out the kind of advice as an MF as you do on the lone parent board, then I'm worried for those you're assisting.