Separation no bar to divorce finance claims

Separation

Separate but not apart in absence of divorce

Any divorce lawyer will tell you that it is better to obtain advice about an appropriate financial settlement upon divorce than simply let things drift.  People’s lives move on, sometimes for the better, sometimes for the worse, but any delay of years can usually make it harder to sort out (never mind agree) an appropriate settlement.  Even when ex-husbands and wives are trying to negotiate financial claims many years after the separation they can get a nasty surprise to learn that the family court will value assets at today’s prices, not six or seven years ago if that happened to be the date of divorce or separation.

My postbag has a plea from Tina:

I left my husband six years ago, and have been living with a new partner.  I never divorced. I am on the bread line – used all my life savings to help support my new partner, even bought him 3 cars.  I’ve no income at all.  My new partner’s on very low income.  We live in rented house, and new partner is talking about leaving me now. I’ve no security. My husband still has his own business, and promised inheritance from his uncle. Could i be eligible for sposal maintenance? My husband was also left his mum’s house, which i didn’t get a penny from. Plus I’ve no pension, and I’m 52.  I had a heart op two years ago. Thank you.

There is so much about Tina’s situation that I do not know about.  Readers of my blog will know that the devil is always in the detail when it comes to the family’s court’s jurisdiction which takes all circumstances into account.  As usual, because I cannot and do not offer advice on my blog, I can only make some observations about Tina’s desperate situation:

  • I do not know the length of the marriage .  The longer the marriage, the more likely the presumption of the court to consider it reasonable for Tina’s husband to make financial provision for her, despite the significant period of separation;
  • I do not know whether Tina raised children with her husband during the marriage: is Tina’s lack of pension provision because she was busy bringing up the children?  A factor that would weigh heavily with the court.
  • When did Tina’s husband receive his mother’s house?  I presume this was an inheritance?  The inheritance is likely to be significant, especially if Tina and her husband already owned their own property and the mother’s house is a surplus asset.
  • Tina’s health is not good at the moment and she does not appear to have any earned income.  Her health may severely limit her ability to get paid work.  This would concern the family court.
  • There is mention of the husband’s business.  Was this a business he had during the marriage?  Was it a company and did Tina have any formal interest in the business, such as a shareholding?  Did Tina make an indirect contribution to the value of the business by dint of the marriage?  This business could be hugely significant in any divorce but I don’t have any information.
  • Tina mentions the ‘promised inheritance’ from the husband’s uncle.  This is only a promise and the uncle could change his Will at any time.
  • Unless there are very valuable assets in the marriage, it is likely that a court would deal with a financial settlement on the basis of ‘needs’.  This means that a court may compel Tina’s husband to use any assets he may have built up after Tina left him to satisfy Tina’s financial claims in divorce.  The husband’s inheritance from his mother may also have to be partially used.
  • Tina and her husband are not divorced.  There has not been a financial order from the court.  Tina has not re-married.  This means that the financial claims: property adjustment, lump sum orders, spousal maintenance, and pension sharing orders, are all still open to Tina.
  • Although Tina has been co-habiting with her new partner for six years, this does not have the same weight as a marriage in the eyes of the family court.  In any event, Tina seems to have spent her life savings supporting this man so he can hardly be viewed as a valuable resource to Tina whose existence should prevent her from reaching a divorce settlement with her husband.
  • Tina may well want to go and obtain advice immediately from a family law solicitor who offers legal aid before that scheme dries up  in April 2013.  The solicitor can advise upon initiating a divorce and also a financial settlement and may also want to explore how Tina’s housing situation can be secured should her present partner leave her.  Is the rent paid to a private landlord or to a local authority or housing association?  Steps may be taken under the Family Law Act 1996 to prevent Tina’s partner from relinquishing the tenancy and therefore making Tina homeless.
  • I doubt Tina can take any further steps against her present partner for the monies she has spent on him.  As co-habitees, neither has any financial responsibilities to the other.
  • Tina may also wish to consider booking an appointment with her local CAB to have her situation assessed by a welfare rights benefits adviser, particularly in view of her health.
I hope my observations are helpful and I wish Tina well.


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