Family law and divorce questions on Radio Verulam

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January 11, 2016

Senior Partner Marilyn Stowe appeared on St Albans station Radio Verulam at the beginning of the week to answer listeners’ questions about divorce and other aspects of family law.

Transcript from Marilyn Stowe on Radio Verulam

PR:                   Phil Richardson

MJS:                  Marilyn Stowe

PR:         Our regular feature brought to you by Stowe Family Law who are in St Albans along with other places as well. Marilyn Stowe is on the phone to talk to us and give us some advice. Hello there, welcome.

MJS:      Hello there, good morning.

PR:         Great to have you back again.

MJS:      Thank you.

PR:         Now, let’s dive straight in. The first one was about someone who had a marriage for 30 years; a religious ceremony by the sound of it, not registered in law, is the marriage legally recognised and would they have to go through divorce proceedings?

MJS:      Well, when you come across this situation it is usually people who are Greek Orthodox or Muslim, who may have had a religious ceremony, they think that they have got married but they actually haven’t and they need a civil ceremony alongside and the law here is quite complicated. I have actually seen on quite a few websites, “that definitely, definitely means they are not married and therefore they’ve got no remedy” but actually it is a little bit more complicated than that. The law distinguishes between something called void and non-marriages. So whether the ceremony set out or purported to be a lawful marriage here, whether it bore the hallmarks of the marriage, whether there were three key participants, including the officiating official believed, intended and understood the ceremony in giving rise to a lawful status of marriage and reasonable perceptions and understandings and beliefs of those who went. All that all means is, did you and the person conducting the marriage honestly reasonably believe that it was a proper marriage, even though it wasn’t. Because even if it wasn’t a marriage, it could be regarded as a void marriage and if it is void, because it wasn’t actually legal even though you thought it was, if it is void, you still have remedies in English law and that is very, very important when people split up.

PR:         Fascinating.

MJS:      If it was a non-marriage, which means you go through some sort of simple ceremony that couldn’t possibly in any way shape or form have been regarding as a marriage at all, that’s a non-marriage and that’s it, there certainly wasn’t and you’ve got no remedy. So it is tricky, it is complex and anybody thinking about was I married or not really, really needs to get good legal advice. The same thing happens if you get married romantically abroad, are you really getting married or are you just saying words to each other. Check that the marriage is actually a valid marriage and not just a romantic thing.

PR:         Is that like in the States you are thinking of?

MJS:      Well we have had some really strange marriages actually; we had one case where a couple got married on horseback on the edge of the Grand Canyon and that was legal and you have other cases where people go through a religious ceremony in Europe and they are not married because the country requires a civil ceremony as well. So, people thinking of getting married abroad in a romantic ceremony of whatever kind do need to check first.

PR:         Somebody has split up with their husband three years ago, they really want a divorce but the gentleman doesn’t really seem bother. He said he is going to through any of the correspondence away.

MJS:      People always say that. Very often people threaten but they actually do engage with proceedings. It is not a good idea to ignore legal proceedings but the sensible thing to do is to make sure that he is personally served; you can ask a court bailiff is you qualify for that or you arrange for an enquiry agent to serve it and if they don’t engage, it’s their fault, their problem, you can get on with it and proceed.

PR:         Another similar one, “separated with my wife five years ago, have two children together and I have met somebody else and I want to start divorce proceedings, however, my wife has said she plans to move to Australia with the children”, what do you think, what are your thoughts on that one?

MJS:      Both parents have what is called parental responsibility and it is an offense, a criminal offense to remove children from this country without the consent of the other person who has parental responsibility or a court order. Lots of people threaten in divorce “I am going to do this” and they never do it. For those who seriously intend on going to live abroad, either they get the consent and that has to be in writing I would say, or they go to court and they ask for permission to remove the child or children from the jurisdiction. If you think that somebody is going to do it and not going to comply with the requirement to go to court, you can go to court to get an order to stop it and you can also go straight to the police if you don’t have time to do that and the police with put out an “all ports warning”. We have dealt with this in the past, it is not guaranteed to work with just the police very, very quickly, but it could. So, the court is the ultimate arbiter and what the court will do is they will look at all of the circumstances, the wishes of the children are important if the children are old enough to say what they want but the court doesn’t readily say “yes, you can go off to the other side of the world”, they have to consider the welfare of the children, which is paramount and make a decision accordingly.

PR:         Right, now I think this one is the most fascinating one this week. “I separated from my husband 10 years ago; I want a divorce and want to remarry. The problem is, I have no contact with him, can’t track him down, he may be in Ireland and his family won’t give me any information. What can we do?”

MJS:      A very good website on gov.uk, a divorce and a missing husband or wife, which is bang on here what we are talking about. What the court can do is they can give you permission to proceed and you issue your partition and you try and serve it; which we were talking about before, and you need to show you have done everything you can to find them by contacting relatives, friends, last known employer, bank, building society, trade union, professional organisation, and so on. Then you apply for permission to dispense with service of the divorce partition and you lodge it with the court and ask the court if you can proceed, saying I have done everything I can to track this person down, I can’t find him, please may I go ahead and the court will consider it and tell you what to do after that.

PR:         Right, are they likely to make you wait for a certain set period?

MJS:      No.

PR:         But what sort of time…

MJS:      Straight away. The court will allow you to go straight ahead. We must not confuse this with where you think somebody is dead, this is where somebody has simply disappeared and living somewhere where you just can’t trace them. If they are satisfied you have done everything you possibly can to find them and you still can’t trace them, they will allow you to proceed, they won’t leave you tied up married forever.

PR:         Now, the last one is on financial support. “I separated from my husband 15 years ago but we haven’t been divorced and he has been paying some monthly money, says he is going to stop for the daughter when she reaches her 18th birthday, doesn’t really want anything to do with her but she is going to university so can we still get a tie-in with some financial support for my daughter?”

MJS:      Well of course. People invent age limits to suit themselves but the reality is, and let me refer you to the law which is Section 29 of the Matrimonial Clauses Act 1973, when a child is continuing into first degree education at university, both parents are responsible for the upkeep of the child and are responsible to maintain them. So yes, maintenance can continue post 18 when the person is in education. Also, when there is a disability when a child can’t possibly maintain themselves in the future.

PR:         Well information today from Stowe Family Law with a branch in St Albans, where are your other branches, Marilyn?

MJS:      We have got the Winchester office opening on the 18th of January, I am delighted to say. We have an office in central London at Gray’s Inn, jut opposite Chancery Lane and just next to the Chancery Lane tube station actually. We have got an office in St Albans of course. In the north, we have got offices in Hales and Wilmslow in Cheshire and in Yorkshire we have Leeds, Harrogate, Ilkely and Wetherby.

PR:         Thank you once again for joining us and making such an interesting contribution to the programme.

MJS:      Thank you, my pleasure.

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