cohabitation

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My ex is cohabiting

January 25, 2016 in spousal maintenance by Alan Larkin | No comments

Postbox

My virtual postbag has another enquiry regarding an ex-partner who is now cohabiting:

MP tells me:

We are about to sign the paperwork regarding our financial settlement but my ex husband is lying about the fact he is cohabiting… does that make a difference for me as far as the financial settlement?

I receive a great deal of traffic about the effect of cohabitation in the context of divorce financial settlement.  I probably don’t have a lot more to say on the issue here except that this enquiry is interesting in respect of the obligation on each party to a divorce to tell the truth about their financial circumstances.  That obligation to be full and frank about any change in relevant circumstances carries on until the point an order is approved and sealed by the family court.

MP feels certain that her ex husband is lying about the fact he is cohabiting and asks whether this makes a difference as regards the financial settlement.  I can’t really answer that question as I don’t know the circumstances.  But I can say that MP’s ex needs to tell the truth about his circumstances because MP may feel that her ex’s new partner has a reasonable amount of income and can share expenses with the ex.  In other words, this new partner represents an income resource to this ex.  That may be relevant to MP’s circumstances if she is in need of spousal maintenance from her ex.  If MP has lawyers then they can advise her upon the situation.

From the sound of it, MP is about sign ‘the paperwork’ on her financial settlement.  This sounds like a consent order.  Any consent order needs to be submitted to the family court for approval and be accompanied by a Form D81 – also known as a Statement of Information Form.  One of the questions on the form requires a declaration as to whether either party is cohabiting or intends to cohabit. MP’s ex, when he signs this D81, must tell the truth.  His lawyers, if he has them, must ensure that he understands his obligations in this regard.

It is open to MP, if she feels strongly about this point, to refuse to sign the consent order or the D81 form until her ex provides a truthful response.  She will need to be guided by her lawyers.

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Child maintenance and cohabitation should not be linked

August 16, 2014 in child maintenance, spousal maintenance by Alan Larkin | No comments

 

Postbox

 

My virtual postbag brings me a question from P: a common question about the relationship between the payment of child maintenance and cohabitation.   P obtained a consent order dealing with financial matters arising out of divorce.  The only problem being that her ex has interpreted the terms of the consent order in a way that has a detrimental financial impact upon P.  She tells me:

“Paragraphs 2&3 are relevant. My ex-husband believes that because I have been cohabitating with my new partner for 12 months (2c) he has no legal obligation to pay child maintenance (paragraph 3).”

There is often confusion on the part of maintenance payers between spousal maintenance and child maintenance.  Spousal maintenance is paid by one spouse to the other after divorce.  Lawyers refer to it as spousal periodical payments.  Let’s have a look at the relevant paragraph in P’s consent order that requires her ex to pay her spousal maintenance:

screenshot of consent order

 

OK.  So we can see here that there is a reference in paragraph 2 c to P’s spousal periodical payments terminating in the event that she cohabits with another for a period of 12 months.  Cohabitation with a new partner can be a common terminating event for spousal maintenance.   Let’s then look at an entirely separate paragraph dealing with child maintenance (referred to as periodical payments):

 

screenshot

 

The order requiring P’s ex to pay child maintenance to her for the benefit of their child is entirely separate (as I would expect) from the paragraph dealing with spousal periodical payments.  The payments of child maintenance cease when the child reaches age 18 or ceases full time secondary education.  The payments of child maintenance DO NOT CEASE if P cohabits with another for a period of 12 months.  Unfortunately, P’s ex has misunderstood the terms of the order.  He has linked the child maintenance and cohabitation.  It is P’s spousal periodical payments that have ceased (or will cease) upon 12 months of cohabitation.  This has nothing to do with child maintenance.  But that misunderstanding has a serious financial impact upon P’s child.  The payment of child maintenance and cohabitation are not linked in this consent order.

Perhaps P could refer her ex to this blog post so he can see how the confusion has arisen.  He should then reinstate the payments of child maintenance for his child.  At the end of the day, these payments of child maintenance are not for P’s benefit but for the child.

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Married couples tax break

September 28, 2013 in Social policy by Alan Larkin | No comments

Married couples tax break

Do not adjust your radio: back to the future

I am still digesting the news that David Cameron has proposed a married couples tax break which has been spun to the press as being worth £1,000. I really thought I had tuned my radio into an announcement transmitted in the late 1950’s which had, mysteriously, taken all this time to reach my DAB radio.  It is a tax allowance, so the net effect, provided both spouses are not higher rate tax payers, will be a saving to the couple of £200 a year.  The papers and news sites were full of it over the weekend:  see The Independent.

I have found myself slowly stewing with anger as the proposal has sunk in.  Why?

Firstly, I have to acknowledge that the proposed tax allowance will be available to gay couples provided they are in a registered civil partnership.  I give credit to the Prime Minister for having previously nailed his colours to the mast of gay marriage and risking the alienation of large swathes of his own party.   So what’s my beef about Dave’s long-promised plans to favour the status of marriage in the tax system?

Here’s what’s rubbing me up the wrong way about the married couples tax break:

  • The message is divisive.  What the proposal says to cohabiting couples is that they are not as important as married couples.  Co-habitees are second class citizens.  I happen to be married.  Does that make me better than the co-habiting person standing next to me in the supermarket check out queue?  Does it mean that I am a better partner to my spouse?  Or a more loving, and attentive, father to my children?  Does it make me a more rounded, more valuable citizen, better able to make an outstanding contribution to the economy, my community and the general well-being of the nation?  The answer, patently obvious to anyone investing more than 3 seconds to the proposition, is a resounding ‘No’.
  • It has ruined the warm glow I had from the announcement by the Lib Dems that every child in England between the reception year and year two would get free school meals.  I was heartened at the time by the Lib Dems’ announcement.  In retrospect, it appears the price of the Lib Dems’ free school meals plan is the free hand given to the Tories to push the married couples’ tax break. (The Lib Dems do not support the tax break but have agreed to abstain in any  Parliamentary vote).
  • It is irrational in the sense that I don’t see it fixing whatever it is the government thinks is wrong with society.  I hear that Mr Cameron is a fan of Nudge theory: that desired changes in behaviour can be achieved by indirect messages rather than beating people over the head with a stick.  The married couples tax break (which will cost £700m a year in lost tax revenue) but is only worth up to £200 a year for a married couple does not seem to me likely to have all those morally lax co-habitees rushing to tie the knot.
  • It is discriminatory.  The 2.9 million people who cohabit in the UK (according to the Office for National Statistics in November 2012) will not feel nudged by this tax discrimination: more likely it will feel like a poke in the eye such is the undiluted message of discrimination that the proposal carries.
  • It punishes children, or at least, is reckless as to the impact upon them.  Yes, I really mean that.  I have railed before about the level of child poverty in this developed society of ours.  Why should the children of married partners get the indirect benefit of this tax break but not the children of co-habitees?  The HM Treasury homepage trumpets its commitment to equality and diversity:

“When making policy, our officials look at the impact a policy might have on protected groups and then consider options to avoid any negative impact on that group.  Ministers are advised of the impact a decision has on protected groups, and this is taken into account when a policy decision is made.”

  • Well, I can’t think of a cohort more worthy of protection than the kids who are on the wrong side of the poverty gap so why should their situation worsen or slightly improve by dint of something they have no control over: their parents’ decision to marry or cohabit?
  • If you are a widow or widower.  Tough.  You miss out.  The married couples tax break is not for you any longer.
  • If you are now divorced, well, you have fallen from your state of married grace. So what if you still have the kids of the marriage to look after?  Hard cheese.  No tax break for you.

What a tawdry, tweedy little policy.  How shabby it looks in the light cast on it by the free school meals announcement.  I suppose co-habitees should at least be grateful that their kids will not be discriminated against at the school dinner table.

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Premarital cohabitation in a short marriage

August 3, 2013 in cohabitation by Alan Larkin | No comments

 

premarital cohabitation and effect in short marriages

 

I recall some years ago, a client asking me to assist her with a divorce.  She had only been married for 8 months. I told her, of course, that English divorce law required her to wait until the marriage was at least 12 months old before she could initiate a divorce.  (There were no grounds for seeking a nullity of the marriage which does not require an applicant to wait).  Then she hit me with the bombshell: she and her husband had lived together as cohabitants for 22 years before getting married.  I had to quickly change my focus and try to explain to her the impact of premarital cohabitation in a short marriage.

 

To the virtual postbag…

The case I mentioned above came to mind when looking into my virtual postbag this week.  K sent me the following:

Hi, my daughter is divorcing her spouse after just over two years.
They cohabited pre marriage and her partner did some work on her house 
which she has owned in her name since 1998. Her partner is claiming for 
work he says he has carried out on the house. If the work was carried out 
when they were cohabiting does this count in a divorce settlement? My daughter
is not sure if they were even living together when the work was carried out.

Well, I can answer this simply (for once): premarital cohabitation in a short marriage is highly relevant.  In essence, the family court will add the years of premarital cohabitation onto the years of the marriage itself.  So, for instance, if there are seven years of premarital cohabitation and only two years of formal marriage, the family court will regard this as a nine-year marriage. However, the premarital cohabitation should ‘seamlessly’ transition into the marriage.  That is, if there is a big gap between the premarital cohabitation and the subsequent marriage then the prior cohabitation may be disregarded.  The devil is always in the detail.

Having a short marriage extended by the addition of premarital cohabitation years is hugely important.  The significance is that in the absence of children, in a short marriage, the court will probably find it easier to provide divorcing spouses with a clean break.  But the longer the marriage the more likely it is that the court will look more closely at the division of capital and the requirement for one spouse to have spousal maintenance after the divorce.  It is often the case that one spouse has brought a capital asset into a marriage, usually in the form of a house.  Bringing a house into a marriage could be seen as a form of capital contribution.  At the point of divorce, spouses will often argue that such a contribution  should be ‘ring-fenced’ and ask that they be allowed to retain the value of the contribution itself.   However, it will become harder for a spouse to argue that they should be allowed to keep their contribution or, the greater part of the value of their contribution, the longer the marriage goes on.  This is because over the course of a long marriage, with the joint endeavours of both spouses to build up capital and income within the marriage relationship, the contribution at the start of the marriage will appear more and more insignificant.

Premarital cohabitation

I do not know about K”s daughter’s situation.  I do not know if there are children in this marriage.   The existence of children, and the prioritisation of their needs by the family Court, will trump most arguments about ring fencing of contributions at the start of a marriage.  Also, if the husband in this case was the main carer of the children while K’s daughter went out to work, then his contribution as a home maker and provider of child care for the children will be regarded as just as important as that of breadwinner.  With the existence of children, the home that may have been in the name of one party only before marriage, evolves over time into the matrimonial or family home.  The family court may therefore regard it as impossible to do justice to both spouses, and the children, if they allow one spouse to ring fence the contribution from many years ago.

I think it is crucial for K’s daughter to establish whether the work carried out on the home was during the period of seamless cohabitation leading up to the marriage. If the husband was just staying at the weekends when this work was carried out then that is unlikely to be regarded as pre-marital cohabitation.   The husband in this case may have paid monies towards the mortgage and therefore argue that thsi increases his  interest in the property.  It is important to note that the marriage itself will probably steer the family Court towards looking at the situation for this couple ‘in the round’.  By that, I mean that the family court is less likely to be interested in looking at receipts from B&Q or Homebase from seven or eight years ago to see who paid for paint or white spirit.  The family Court will take a ‘broad brush’ approach (no decorating pun intended) to sorting out the competing financial claims on divorce.

Finally…

I have written before about the impact of cohabitation in family law cases.  Cohabitation is relevant in the cases of spouses who have lived together before marrying but also in the case of spouses who divorce (and receive spousal maintenance) and then live with another partner.  In my humble opinion, the UK government has failed to provide a legislative framework that can assist the millions of couples who now cohabit rather than get married.  This lack of political will in the face of this profound social change, contributes to inconsistent judicial thinking on cohabitation issues when they arise in the context of divorce financial settlement.

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Can my ex claim money from my new partner?

July 21, 2013 in cohabitation by Alan Larkin | 81 comments

 

can my ex claim money from my new partner

Colouring in is harder than it looks

It is a common question in divorce: “Can my ex claim money from my new partner?”  Or: “Can my new partner’s ex claim against me?”  It seems to be a fear for most spouses going through the divorce process who are cohabiting, or thinking about cohabiting, with a new partner.  When I receive questions like this, I always think: this time I will give a really short, clear answer.  But just like my efforts at colouring in when younger, I end up going over the lines.  So it is with my blog posts about English family law.

And so to the virtual postbag.  This is the question, posed by C:

I would like to know that if my new partner and I got together (living or married) could his ex-wife claim on my monthly wage? Plus I own my house outright would she have any claim on that?
Thank you.

Each case turns on its own facts.   This is what lawyers say all the time to just about every enquiry that comes in their direction.  Put another way, it is essential to know the facts of a given situation if any advice is to be given in a legal context. To say anything useful in response to C’s question I will need to colour outside the lines.   And I have written before about the status of co-habitees in family law.  Now, as every regular reader of my blog will know, I do not, ever, give out advice.  I can only make observations or prompt further questions for my readers to consider.

 Can my ex claim money from my new partner?

So, in answer to C’s question,  I can make the following points:

  • Since it is your house, your new partner’s ex cannot make any claim against your property.  Full stop. 
  • I presume that your reference to your new partner’s ex-wife means that he has obtained a divorce and a financial settlement.  If he has NOT finalised his divorce and financial settlement, and you move in together, he must disclose that fact to his solicitors.  If he does not have solicitors, then he must disclose that fact to his wife or her solicitors.  This is called the duty of disclosure.
  • If the divorce and financial settlement have not been sorted out yet, and you move in together then his ex’s solicitors may say that you represent a resource to your partner.  The fact that you are housing him means that he may not need as much of the equity in his matrimonial home as his ex-wife.  If your partner has children from his marriage and they are predominantly going to live with his ex-wife then she may say their housing needs should be added to her own housing needs so she should have more of the equity.  And anyway, her lawyers may say, since you are helping your partner to address his housing needs, the ex-wife can how have more of the equity since he does not have as great a need.
  • If the divorce and financial settlement have not been sorted, and the ex-wife wants spousal maintenance then she will say the fact that you are living together means that you are sharing your living expenses so perhaps this frees up a bit more income for spousal maintenance.  But she cannot claim against your monthly income.  That is your money – not your partner’s nor his ex-wife’s.
  • But, if the divorce and financial settlement have been sorted then the impact of you living together is more limited.  There should be a final court order dealing with the matrimonial finances. The key thing is whether the ex-wife has an order for spousal maintenance. If she does, then she may argue that moving in with you means that your partner is sharing his living costs with you so he can afford to pay his ex a bit more.  The ex-wife may therefore make an application to vary her spousal maintenance upwards.
  • And C should remember to consider protecting her own position in relation to her new partner if she lets him move in.  What about a cohabitation agreement between you to sort out who pays what over the course of time?

I could go on quite a bit with these observations.  The answer to “Can my ex claim money from my new partner?” is not as straightforward as it might appear.  But I have almost worn down my crayons so time to pack it in.

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Divorce calculator for simple interest

April 26, 2013 in child maintenance, cohabitation by Alan Larkin | No comments

 

Divorce calculator simple interest

 

As I confessed in an earlier post, I can’t resist a good divorce calculator.  I was talking then about a divorce calculator for journey costs.  The thingymajig  below calculates simple interest on a given sum. I know, you could probably do the maths in your head, but in a lighthearted way, I want to highlight the usefulness of interest in divorce and separation cases.

 

A divorce calculator for interest

 

  • In a divorce settlement, your spouse may offer to pay you a lump sum.  The lump sum may be to compensate you for, as an example, transferring over the interest in the matrimonial home.  But the problem is, your spouse says you will will have to wait for the whole sum or part of it.  If you agree to wait then the money is not sitting in your account earning interest.  Yes, I know that savings rates are rubbish but, in the legal world, cash is king.  If I am going to agree to my client waiting to get their hands on an agreed lump sum I will ask for interest at the court rate.  That, by the way, is 8%.  Yes, I do mean 8%.  If you can find a savings account offering anything near 8% then I’m a monkey’s uncle.  So demand interest.
  • You have separated from the partner of your children.  You want to agree child maintenance.  You realise that inflation will eat into the value of the payments as time goes by.  So, you agree to increase the payments on an annual basis by a set percentage.  The figure is up for agreement although you can of course vary it each year.  Inflation last year was 2.7% so you would want to agree at least 3% to keep pace with inflation.
  • In a divorce or a co-habitee separation one of the parties pays off a joint debt.  It is agreed that half of the sum paid out will be reimbursed but there is a worry that the commitment to repay may fade with time.  You can agree to apply a relatively high rate of interest on the unpaid sum so there is an incentive not to delay payment.  Example: John has a credit card debt of £7,000.  It is agreed with his ex-partner, Sue, that at least £6,000 of that sum was for joint spending.  John agrees to pay off the whole sum but Sue will owe him a ‘credit’ of £3,000.  Sue does not seem very focussed on when or how she will re-pay John the £3,000.  So, before paying off the credit card liability, John and Sue agree that he will be paid back the £3,000 within 28 days.  But in the absence of payment at day 28, interest will run at 8% until it is paid off.  Sue therefore needs to get a move on.

I will try to track down some other calculators that I think might be useful in a family law situation. Don’t knock it – it keeps me off the streets.

 

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How does the budget 2013 impact on divorce and separation?

March 20, 2013 in Uncategorized by Alan Larkin | No comments

How does the budget 2013 impact on divorce and separation?

Another (austerity) budget

How does the budget 2013 impact on divorce and separation?

Chancellor George Osborne has doled out his latest spoonful of medicine for the UK economy.  My take, as usual, is from the family lawyer’s perspective, for those families dealing with separation or divorce.  How does the budget 2013 impact on divorce and separation?  Where the money has to stretch to two households?

The devil is always in the detail, especially with the Budget small-print, and the picture will not be entirely clear for another few weeks, but here is my initial reaction.

The Help to Buy Scheme.

In my post upon the 2012 Budget I referred to a home buying scheme called FirstBuy (George, did they not tell you about finger spaces between words at Eton?).  FirstBuy was aimed solely at first-time buyers.   The better news, I think, is that the new scheme is no longer restricted to first time buyers but will now be available for all buyers of newly built homes.  I hope that it may ease the pressure for those parents needing to fund a new property purchase after a divorce or separation, especially as a deposit as low as 5% could be obtained.  It appears that up to 20% of the purchase costs will be funded by a shared equity loan which will be interest-free for the first five years.

Personal allowance up to £10,000

On the face of it, it will make the pennies spread further in the family budget, especially for those working parents who struggle to afford child care.  And, it will kick in a year earlier than anticipated – in 2014.

Employers’ National Insurance

Indirectly of potential benefit: NI changes (with a predicted 450,000 firms no longer paying NI) may reduce the financial burden for smaller nurseries to take on more staff and provide more childcare.  Additionally, it seems that a new employment allowance will cut National Insurance bills for every firm by £2,000.

Public sector pay rise cap

The chancellor giveth and the chancellor taketh away, or at least, he lets inflation do his dirty work for him.  Following a public sector pay freeze, a 1% pay rise cap for the public sector – the nurses, council workers and teachers – will last for 3 years.  With inflation last year running at 2.7%, this is a year on year pay reduction for the public sector.

The kids are not alright

The Budget comes hard on the heels of benefit changes including Universal Credit which will replace at least 6 individual benefits or credits in the future and changes to housing benefit for those deemed to be under-occupying in the social housing sector.  The net effect of Mr Osborne’s budgets since the coalition came to power has been, and will be,  to reduce the income of families with children.  It seems to have become fashionable again to hate the poor and less well off,  and perfectly acceptable to mis-label them as scroungers, skivers and deadbeats.  At the end of the day, public policy and budget changes are hurting kids.   Those inconvenient people at the Institute for Fiscal Studies have summarised it nicely in the following table.  Is this really what you want, Mr Osborne?

How does the budget 2013 impact on divorce and separation?

THE KIDS ARE NOT ALRIGHT

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How to find the best family lawyer

January 28, 2013 in cohabitation, Form E, Legal services by Alan Larkin | No comments

How to find the best family lawyer

I need somebody. And not just anybody…

How to find the best family lawyer

Court proceedings, whether in divorce, civil partnership or involving children, are stressful. (Just to state the bleeding bloody obvious).  A family law matter is rendered even harder if the solicitor you have instructed does not exactly fill you with confidence.  Even worse is the prospect of having to turn up at court (a potentially intimidating experience for anyone) when your stomach is doing back flips and you don’t feel your legal representative is fully in command of their brief.  So I want to share my thoughts on how to find the best family lawyer.

I have huge sympathy for those lawyers who still offer public funded (legal aid) family work.  Their caseloads are huge.  Their clients are anxious.  The law is not rendered any less complex just because your client is on legal aid.  Most of the time, the pressure is so intense, that the best you can do is to constantly ‘firefight’.  The firm’s overheads are just as high as the private law firm down the road but the legal aid family law firm gets paid only a fraction of the fees that private firms will demand.  Family lawyer burnout is a sad reality.

And so to the virtual postbag…

Which contains this plea from M:

I really need some help. I am petrified my solicitor is not worth their salt as I am struggling alot with the E1 form and not getting a hold my hand experience. I have seen they are not listed on the Resolution.org site and my ex is taking me to court in three weeks. I am legal aid funded and have been with this same solicitor throughout a two year ordeal, trying to also be a full time mummy.  It may be complete paralysing fear…..but I have now heard some bad comments from a Domestic Violence Support group I have been attending about my solicitor. I would be grateful for any help! Thank you.

M later clarified that Resolution had confirmed that her solicitor was a Resolution member.  My first reaction upon seeing M’s predicament was that she should immediately contact her solicitor and explain her concerns.  If I was M’s solicitor, I would want to know if one of my clients felt so desperately anxious  about their situation.  It is rather surprising to see that M’s case has been going for two years. M refers to an impending court hearing and the need to complete a Form E1.  I am therefore assuming that M was not married to her ex-partner but that they had a child or children together and that the impending court hearing is in relation to a Children Act (Schedule 1) case. Such cases allow applications for periodical payment, lump sum orders and property adjustment orders on behalf of a child or children of parents who are not married or in a civil partnership.

I do not know the details of M’s case and therefore know better than to comment any further but I can understand how the prospect of changing solicitors in the middle of court proceedings will be daunting.  However, if M gives her solicitor a chance to make her feel that there is a clear game plan for her case then she may have the assurance she seeks.  The Form E1 is a much reduced version of the full Form E (used by married couples in divorce proceedings).  Form E1 tends to require factual information only like income and liabilities whereas Form E has narrative sections at the end which present a great opportunity to present your case well or a blissfully ignorant way to ruin it.

So, for M, I think she needs to meet with her solicitor to make sure her Form E1 is up to scratch.  It will be for her solicitor (or perhaps, her barrister) at the hearing to explain to the court what M and her child/children wish to achieve.  Because Form E1 does not have the narrative boxes to explain the salient points of a case (an oversight in the design of these forms, in my humble view) I would normally provide the court with a chronology of key events and a summary or position statement on M’s behalf so the court (and M’s ex) is fully aware of the relevant issues in the case.

There may be all sorts of reasons why M’s solicitor hasn’t had the time to make M feel looked after. If M feels that the explanation provided is unsatisfactory then she should say so and her solicitor should deal with the matter as a complaint and seek to resolve M’s dissatisfaction.  If M feels the proposed solution is not good enough or if she progresses to the hearing and still feels that she is not receiving a proper service then she should approach another firm (it will need to be one that offers legal aid) to see if they feel able to take it over.  Although this transfer will require the permission of the Legal Services Commission who administer the legal aid pursestrings.  There should be time between this forthcoming hearing and the next one to change legal firms if that remains M’s wish.  I wish her well.

Choosing a new solicitor

I do appreciate how hard it can be to identify a good solicitor when you may not have a recommendation to act upon.  I know that there are plenty of online  legal directories springing up that claim to have the details of the finest lawyers around.  Most of these directories, especially the ones that pop up after a Google search are… how can I put this? Shite.  Yes, that about sums them up.  I am asked all the time how people can work out who are the really good family lawyers.  I was asked so many times that I committed my thoughts to an eBook, imaginatively titled: How to find the best Family Lawyers.  My eBook is free to anyone who cares to subscribe to my blog, using one on those sign-up boxes that lurk around the edges of the page or pop up when you least expect it. Go on, subscribe.  Knock yourself out.

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The man who sued his wife over the children who were not his

January 14, 2013 in Uncategorized by Alan Larkin | No comments

The law on Deceit put to an unusual use

I have had cases of divorce or cohabitee separation where fathers have sometimes cast doubt on the paternity of the children they have brought up in the relationship with the mother.  In most instances, the doubts expressed are quickly abandoned, since most stem from anger at receiving a letter from the CSA following a very short relationship indeed.  Not many fathers insist upon having their paternity genetically determined.   So I was surprised to see a sobering (and sad) article about a man who sued his ex-wife for letting him believe that the children from her affairs were actually his.

The ex-husband succeeded in winning damages of £25,000 for deceit.  He had maintained the children financially after the separation and divorce believing himself to be the biological father.  It appears from the article that the court awarded the damages at a level equivalent to the feeling of ‘bereavement’ the ex-husband would have experienced when finding out he was not the father.

There is insufficient detail in the article for me to comment further but it would appear that the ex-husband’s legal claim was under the  under the Tort of Deceit (a Tort is a civil ‘wrong’).  The article reminded me of my law student days and the leading authority on Deceit which was then Derry v Peek (1889).  Lord Herschell , in that case, said:

“First, in order to sustain an action in deceit, there must be proof of fraud and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”.

I can only imagine the impact on this ex-husband and also his step-children upon discovering the truth.  How awful it will be if this revelation destroys the relationship he may still enjoy with the children who formerly looked upon him as their father.

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Separation no bar to divorce finance claims

October 30, 2012 in cohabitation, Pensions, spousal maintenance by Alan Larkin | No comments

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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