Financial settlements and marriage on Radio Verulam

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February 17, 2016

Senior Partner Marilyn Stowe appeared on Radio Verulam in St Albans this morning to answer listeners’ questions about different areas of family law including financial settlements.

Mrs Stowe was asked about whether a marriage that took place in India a number of years ago but never registered was recognised as a legal marriage in the UK. The question came from someone who wanted to remarry over here. Marilyn recommended obtaining legal advice from a solicitor who specialises in Indian family law. However, she suggested that the marriage is likely to be legally recognised and the person would have to get a divorce before remarrying.

She also answered questions about what to do if you cannot find your marriage certificates but want a divorce, whether or not separating parties should use the same lawyer, the process of establishing a settlement following separation and whether a marriage can be annulled if it was never consummated.

Marilyn was also asked about what to do when a partner refuses to pay anything after separation. She strongly advised unmarried listeners that they should not stop working when they have children.

Transcript from Marilyn Stowe on Radio Verulam

PR:                    Phil Richardson

MJS:                   Marilyn Stowe

PR:                     Great to have Marilyn Stowe on the phone again. Good morning.

MJS:                   Good Morning, how are you…

PR:                      Talking about advice from yourself on behalf of Stowe Family Law, let’s just dive straight in shall we?

MJS:                   Let’s certainly do. I love doing this programme because you get so much interesting questions. I mean, they are really taxing actually, they’re not normal. They’re good for me; they keep the brain going and active.

PR:                      Good. First off, I am planning to marry my partner of seven years, he’s originally from India and says here he had a religious wedding in India some years ago but wasn’t registered in law so we want to check that out obviously before we get married in the UK. What should we do?

MJS:                   Well, here’s a very interesting one, I am not actually an expert in Indian family law but I have had a look and what I can see the fact that the marriage has taken place but hasn’t been registered doesn’t mean that it is not a marriage, in fact it is a marriage. It is a legal marriage from what I can see and therefore, in order to get married again, he has to be divorced. We will recognise a foreign marriage as valid in English law, providing that it is recognised in the place where it was celebrated. There is something called domicile involved here where we all have a domicile, we all have a domicile of origin where we belong effectively and if the marriage is recognised in the place where they were domicile, it sounds to me as though what he has to do is speak to an Indian lawyer and make arrangements to get divorced either in India or here. He can’t simply ignore the fact that a marriage has taken place and in this country, we would expect him to be first divorced.

PR:                      Right, that’s quite interesting because we have often talked about it the other way where they want to get divorced and it’s because of getting married again here isn’t it? But sometimes it’s said that it is not recognised isn’t it, the weddings abroad?

MJS:                   Yes, well here it looks to me from what I have read, and must stress I am not an expert in Indian family law, it looks as though the fact that it isn’t registered doesn’t nullify the fact that a marriage took place in the first place.

PR:                      Right, my wife and I want an amicable divorce but we can’t find any of the original certificates, we’ve only got photocopy but can’t make it out. Maybe the church could help but maybe they hadn’t sent the paperwork on, we can’t work out what’s happened, where do we go from here?

MJS:                   Well, gov.uk is a very useful website and they have a specific website, order a copy of the birth, death or marriage certificate. So, if you go online, go to the gov.uk website, certificates cost £9.27 and you can order it from there. There is a different process for getting a copy of a certificate in Scotland and Northern Ireland; there are links there as well. So that is the way that you do it. You will need to produce a copy of the marriage certificate if you want to go to get a divorce in court, effectively what happens is you lodge a certificate of marriage in the court and when the process is over you get a certificate of decree absolute. You must keep the certificate carefully because if you do remarry, you will need to produce it. You might need to produce it for other things as well but that is effectively what happens, you sway the marriage certificate for a certificate of decree absolute.

PR:                      Right. Okay, now I think I know the answer is no to this next one but please be very happy to disagree with me because you are the expert. I plan to get divorced as soon as possible but my partner says we should use the same solicitor.

MJS:                   Sorry about that but no, not a good idea. You need independent legal advice, you’re spouse, in law, becomes your adversary, you need to understand your own position, you need to know what your entitlements are. This is a very serious legal process, one of the most serious processes you can go through and I always question why somebody says “you don’t need a lawyer” or “let’s use the same one”, get your own independent legal advice and take it. That doesn’t mean that then you’ve got to become very adversarial yourself, it does mean that you can take a commercial informed view and the best way is to negotiate whether with legal advice or without it if you are fully informed and negotiate an amicable divorce. If you can’t, well, the court is there and don’t be afraid of going to court. It is quite a straightforward process and it is there to help.

PR:                      I got that one right.

MJS:                   You did, you did.

PR:                      I am a little confused about the next one because we are talking about paying a mortgage. They haven’t explained, I don’t know if you noticed when we sent you through the questions, they haven’t explained what is happening at the moment with the house; presumably it is being rented out. My wife and I separated a couple of months ago and basically she earns a fortune but refuses to pay towards the mortgage and can I get a settlement with the contribution being added in, that sort of thing…

MJS:                   Well, there are two stages to this. When a marriage breaks down you’ve got to make what a called interim arrangements until you reach an overall final deal. People get very upset and worried about what happens in the interim, if a sensible arrangement can’t be reached between the parties then the court will make an interim maintenance order which is called maintenance pending suit. In that interim arrangement, the court will take into account the income of both parties, the financial outgoings of both parties and roughly divide up the income so that the outgoings are met. It is not intended to be a full and final order, it is simply meant to cover the initial issues but people get very hung-up about it, they get very excited about it, they get very upset, don’t, don’t. The court can always put something right if they think that something should be added back into the final order, they will. It is best to avoid incurring unnecessary legal costs of going to court arguing about an interim legal arrangement but as I said before, it is there, the court is there to help. If you are in a situation and you need interim spousal maintenance, apply for it.

PR:                      Right. Okay, fair enough. Okay, another one about somebody in a little bit of a pickle here. I divorced my husband about 11 months ago and I haven’t built up any money or assets. Not working during the marriage; full-time mum etc. We agreed on a financial settlement, giving me a proportion of his assets and I haven’t received any and he says he won’t pay anything either. Where do we go with that?

MJS:                   This is such a silly thing for him to say. He is an ostrich with his head in the sand. The court will look at all of the assets of the parties, everything; income, capital of every kind, that means savings, that means house, that mean pension, it means shares, everything. The court will look and the reasonable financial needs of the parties and will divvy up accordingly. So, if you’ve got a mum who hasn’t been working, whose income capacity is much lower because she gave it up, her job prospects, to look after children, the court will take that into account no and going forward in the future. Ultimately, to aim is for the parties to be self-sufficient but until that point, the court will ensure that she receives sufficient income and capital for her to be able to manage. The fact that she hasn’t made a financial contribution means nothing; she has made a contribution as a housewife, as a mum, without which he wouldn’t have been able to do what he has done. So please don’t think that because you haven’t earned during a marriage that you don’t have an entitlement, you certainly do. The interesting thing, had she not been married, my advice to her would sadly have been very different because she might well be leaving that relationship with nothing.

PR:                      That’s the important thing then there isn’t it…

MJS:                   Marriage is absolutely vital if you are going to give up your job, if you are going to stay at home and raise children. You’ve got to think about the financial consequences if you’re not married and you split up, it can be horrendous.

PR:                      Presumably civil partnership is included in that then, Marilyn?

MJS:                   Civil partnership is a kin to marriage, so if you have got a civil partnership, and civil partnerships only exist for gay couples, you can’t at the moment enter into a civil partnership if you are a straight couple. There is a case going through the courts at the moment where they say that is discrimination, we would like a civil partnership but we are not allowed it, why can gay people get it and not straight people. Actually, I agree with that. I think that if somebody wants a civil partnership, why not, let’s see what happens. But please, if you are not married or if you are not in a civil partnership, your financial entitlement at the end of that relationship – no matter how long – can be nil.

PR:                      Last one. I read years ago about having a marriage annulled if it hasn’t been consummated, is this true?

MJS:                   Well, you can annul a marriage; I think we have discussed this before actually, there are different types of marriage. You can have a marriage which is void, which is not legally valid, for example if marriage occurred between two close relations, being under 16 or if somebody was already married, then a marriage that you have entered into after that is not a valid marriage, it is called a void marriage. That can be annulled. There are marriage which are called voidable, which can also be annulled if it has never been consummated or you didn’t really consent to it, for example, you were drunk when you got married, which happens, or you were forced into it, or somebody had a sexually transmitted disease when you got married, or the woman was pregnant by another man when you got married. So, all of those reasons are reason to say “well, actually I want out and I’d like to annul it.”

PR:                      And that is instead of divorce then?

MJS:                   Yes, and annulment means you would still have entitlements to make the same claim as you would on divorce and the gov.uk website actually has a whole thing about annulling a marriage and you can get more details there.

PR:                      Really fascinating and not the answer I thought you were going to give.

MJS:                   I must say. I don’t get many of these cases. I do remember speaking with somebody for about an hour about entitlements and she came back into the room about an hour later and said “there is just one more questions, Mrs Stowe… If when I got married, I was already married to someone else, does that make a difference?”

PR:                      Well thank you very much indeed, it has been fantastic chatting again and we will be chatting again very soon.

MJS:                   My pleasure.

PR:                      Thank you very much for everything there, bye bye.

Listen to Marilyn’s full interview here (interview starts at 36:00)