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Legal matters

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Original poster

My parents have been separated 17 years - are they still legally married?

27 replies

Newschapter · 17/09/2019 16:36

I'll say first off we're in NI incase that affects the advice.

My parents split up 17 years ago and never lived together since.

They never actually got round to legal separation or divorce.

But they've lived at different addresses since then and have only had contact for family occasions (weddings, christenings for example)

Anyway, my mother has Alzheimer's and is in a care home (which was advised by social workers as she no longer had capacity) and the whole family has had a falling out (a lot of stuff has come to the surface which I don't want to go into here, if you know me from other posts please don't 'out' me)

In recent days my father has went into the care home and asked to remove my mother. He said he wanted to take her out a drive - we can't let this happen as he treated her very badly after diagnosis and was cruel to her when they'd be in the same room.

He is telling the care home they are still married so he is her next of kin (on paperwork my sibling is)

Basically I would like to know if legally they are still married and if he pushes this is the law on his side? (Mum has no capacity and hated him for years but now forgets how he treated her. He wants to take her out to have control like he had for years)

Thanks for reading

OP posts:
user1497207191 · 17/09/2019 16:37

They're legally married until formally divorced/annulled. Doesn't matter how long they've been separated. But, obviously, the longer, the easier to get a divorce.

coconuttelegraph · 17/09/2019 16:38

I'm not a lawyer but divorce doesn't happen by passage of time, you have to go through the legal process so I'd say they are still married

HeadintheiClouds · 17/09/2019 16:39

Of course they are!

Redshoeblueshoe · 17/09/2019 16:40

Legally they are still married

GlasshouseStoneThrower · 17/09/2019 16:40

Hi OP. This isn't my area of expertise but my understanding is they they will still be married.

If your mum lacks capacity, do you have a POA?

leaserspottedmummybird · 17/09/2019 16:41

Yep they are still married of course.

OtraCosaMariposa · 17/09/2019 16:42

If they haven't divorced of course they are still married.

DonPablo · 17/09/2019 16:42

What a nightmare. Yes, they're still married.

The only way I can see you can make a difference here is to tell your dad that if he wants to flex his next of kin rights, they'll be billing him for her care.

More seriously though, get legal advice ASAP.

Original poster
Newschapter · 17/09/2019 16:45

Thanks

My sister contacted citizens advice and they said as he's not next of kin on paperwork he has no rights in regards to the care home.

We have said nobody only siblings is to remove her from the home for any period of time

OP posts:
Original poster
Newschapter · 17/09/2019 16:51

She was diagnosed three years ago and since then we had a major family tragedy which meant by the time we came to trying to get POA she hadn't capacity to give agreement.

Plus there's no property, no savings so nothing for him to try and take.

He doesn't even care about her. He's a narcissist who always has to be in control and this is another way of flexing his muscle.

Hateful old bastard

OP posts:
HereWeGoNow · 17/09/2019 16:53

You need legal advice. AFAIK If they are still legally married, he will be entitled to inheritance when your DM passes away. Make the nursing home aware of the situation.

HereWeGoNow · 17/09/2019 16:54

I'm sorry, I have just seen your update.

Original poster
Newschapter · 17/09/2019 17:03

The care home are aware

We allowed him to visit her as he kept showing up at the home and as she wasn't upset (as she doesn't remember the bad times yet) my sister said he could go in the odd time

Now he wants to take her out but he can't be trusted. We have told the care home he isn't to take her out and they've agreed.

They keep notes of how she is after his visits and if she starts getting upset they can tell him not to visit. But until he does something wrong they can't ban him

He never cared before but he had recently retired and has more time on his hands.

OP posts:
TragicallyUnbeyachted · 17/09/2019 17:06

They are still married, but that doesn't make him her next of kin -- in UK law (well, under English/Welsh law and I think this bit is the same in NI) is someone nominated by the patient.

He is going to be her "nearest relative" though, and that does have legal relevance and would give him special status for the purposes of the Mental Health (Northern Ireland) Order -- probably worth your checking it out and seeing whether that applies to your mother and her circumstances. But on the bright side if he's claiming to be "next of kin" it suggests he doesn't know about the "nearest relative" thing.

HappyHammy · 17/09/2019 17:17

They are still married. If she has no capacity then she should be on a DOLS or ni equivalent and all decisions around her care including going out will be made in her best interests. As she did not have capacity to agree to going into care and no one has p.o.a. then the court of protection might have been involved. You can call the office of the public guardian or equivalent about your applying for deputyship to make decisions on her behalf. If you feel she is at risk of harm from him or financial abuse the social worker and home can raise a safeguarding concern.

Original poster
Newschapter · 17/09/2019 17:18

My mum has no capacity to nominate anyone now but since their split she has always put my sibling down as NOK at doctor/hospital forms etc

He is genuinely not interested in our mother but in keeping hold of of the control he has had on us as siblings and on her before their split (and he tried to control her even after their split)

OP posts:
TeacupDrama · 17/09/2019 17:21

if she no longer has capacity to sign a POA you will have to apply via courts for guardianship, this costs money
he will be consulted though not necessarily appointed guardian they often appoint children rather than spouses as the spouse may also lose capacity or be too ill to organise stuff
but as still legally married I do not think you will be able to do it behind his back when it comes to welfare issues they will talk to the care home other relatives ie you and your siblings ( but not cousins etc) social work and GP

Original poster
Newschapter · 17/09/2019 17:21

The social worker and care home manager have said it's not in her best interest for him to take her out.

He approached the care home manager and she said he isn't her next of kin on their paperwork and wasn't one of those named to take her out.

He told her they were still married and he was her next of kin. Manager said not on their paperwork so he wasn't taking her out without permission from my sibling.

He won't ask my sibling as relationships with us all have broken down and he's been told not to contact us.

OP posts:
Original poster
Newschapter · 17/09/2019 17:29

@TeacupDrama he was not consulted when it came to placing her in the care home.

It was a meeting of our siblings and the social worker. Nobody mentioned him and when we said they were split up 17 years she didn't even ask for proof/evidence etc

He is literally only wanting to take her out if the care home (in our opinion) to force contact with us.

OP posts:
Drum2018 · 17/09/2019 17:29

I'd be telling the care home not to let him in at all. Explain that he was abusive towards her and, while she doesn't recall it, he's obviously on some sick mission to wheedle his way in, probably thinking there's money to be gained if she passes away. He sounds like a right piece of work.

Original poster
Newschapter · 17/09/2019 18:15

@Drum2018 we did ask but they said they can't refuse entry.

Both they and social worker said they can't refuse him access unless he is abusive to our mother when he's there or he upsets her.

A member of staff is always vigilant when he's there and her room is locked so he can't take her in there. He has to stay with her in the communal area.

I think they're thinking if they give him enough rope he'll hang himself? Here's hoping.

OP posts:
ItStartedWithAKiss241 · 17/09/2019 18:35

Hello, they are still married yes. Next of kin isn’t a legal thing so anyone can be next of kin, clearly that wouldn’t be your ex who you disliked. My advice would be to tell the care home that you fear he may be abusive to her if he removes her and you don’t want him to. They will probably do some sort of safeguarding x

Original poster
Newschapter · 17/09/2019 18:43

I was in the care home today (one of us visit daily) and they have it on her notes on the front of her file in red pen that she must never leave the home with him.

OP posts:
mummmy2017 · 17/09/2019 18:54

Could he be after her pension?

Original poster
Newschapter · 17/09/2019 19:03

No, he had plenty of money.

Her pension goes toward the care home fees and we pay a third party top up fee (my siblings and I)

Our father pays nothing and probably thinks because she doesn't have property that the care home is free (he doesn't have a clue) but I'd rather go bankrupt paying it than ask for one cold penny of his

OP posts: