Matrimonial property and family law questions

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September 14, 2016

Senior Partner Marilyn Stowe appeared on Radio Verulam this morning for her regular segment answering listeners’ questions on different aspects of divorce and family law, including matrimonial property.

Other areas of family law that Marilyn was asked about included prenuptial agreements, child residency, adultery and buying a property with a partner who is still married to someone else.

Transcript

PR:                            Phil Richards

MJS:                         Marilyn Stowe

PR:                            So, we are talking family law again, courtesy of Stowe Family Law. Shall we dive straight in? We’ve got some complicated ones today.

MJS:                         You always send me complicated ones; this is no different from the norm.

PR:                            Okay, the father of my child took him on holiday to Turkey whilst I was on holiday with my permission. When I returned from holiday he said I couldn’t have my 12 year old back as I was in temporary emergency accommodation. I have custody; he has never paid anything at all in financial support. What should I do and does the child’s father have any legal rights over my son?

MJS:                         Enforcing a court order in relation to a child is something we see quite a lot. People think it’s okay to breach a court order, well it isn’t. This is an emergency and it needs to be dealt with as an emergency and therefore, I think the first thing I would suggest is to go to the police with a copy of the order and say “I have an order which gives me residency and the child is supposed to live with me and the father is breaching the order, please will you help me to enforce the order?”. Sometimes the police will help, sometimes they won’t. If they won’t help then you need to go to court to enforce the order and you need to ask the court to have it heard urgently. They might hear an application without notice to the father but that would be very unusual indeed. They might say “well we will hear the application but we will cut the time to service and we will hear it within a couple of days”. But you don’t just obviously sit and worry about it, you do go and see a lawyer and get advice. Legal aid, as we know, has been massively, massively cut. I don’t think that this would qualify for legal aid so you either instruct a lawyer or do it yourself. You can get the forms online, you may not have to pay a fee if you are subject to a fee exemption, and again there are details online and then you go to court and apply. Enforcing court orders generally is a subject which causes enormous problems for people. Usually it is where mum has residency of a child and the father is denied contact. Again, it is all about enforcing of the order if mum won’t allow the child to be available for contact and there are penalties available to use, such as work related orders, fines, and in extreme cases the court can switch residency.

PR:                            My boyfriend is still married. All 3 of us now have our own houses. What advice can you give me if I was considering buying a house with my boyfriend in future? Can you foresee any problems that might occur if he remains married or if he wants a divorce?

MJS:                         Well, there is no legal relationship if you live together, we’ve discussed this before. So, there is no legal relationship; that is the first thing. The second is, if he’s still married and his finances have not been resolved and neither have his wife’s finances been resolved, why on earth would you want to be a piggy in the middle with all that? What you have can’t be brought into account but indirectly can in that you have resources and if you are living together the court might say that he has less needs than his wife. It could become very complicated. Might strong advice is do nothing unless your boyfriend gets divorced, gets the finances sorted out and then consider the basis on which you want to go ahead and buy with him.

PR:                            I live with my wife in a house that is jointly owned by her ex-husband and her from about 5 years ago. He hasn’t up until now claimed half of the house. Will time forfeit his chance of claiming his share?

MJS:                         The answer is no. If you own a property, you own a property. It is short sighted and blinkered to think, “well, let’s just leave it”, like an ostrich might do and hope it will go away. It won’t because all that is happening is he has got an ever appreciating asset and if you want to buy out his interest then the sooner you do it, the better. If you think that there is a good chance of your relationship continuing and you want a share in the house as well, it is entirely a matter for you. Ignoring it won’t make the problem go away. The new husband has no rights to a property that is jointly owned by the wife and the ex-husband. He has no rights but his new wife owns half I suppose conceivably in a divorce that is a resource available to her which the court might distribute between them on the basis that he might have helped to pay towards the house. The most sensible thing in my view is get rid of the first husband’s interest and move forward together.

PR:                            I have found out my husband is having an affair and so am I. Whose fault would grounds for divorce sit with and can I sue for compensation given that my husbands divorce started first?

MJS:                         At the moment in English law, in order to obtain a quick divorce you have to prove fault. So one of the ways is adultery and in this case it’s adultery by both parties. So either of them can divorce the other; it doesn’t matter whose adultery was first, both of them can issue proceedings against the other. The sensible thing to do, and again we have talked about this before in the past, is to try and agree it. Try and agree who brings proceedings against whom and also agree who pays the cost of the divorce proceedings. A straight forward divorce can be done by you personally, you don’t necessarily need to instruct solicitors, and you can issue the proceedings and deal with it between the two of you and keep the costs down. Then the only cost is the court fee.

PR:                            My boyfriend wants me to sign a pre-nup before we marry – what is the point of these and are they enforceable or recognised in court?

MJS:      A prenup is an agreement that you should enter into voluntarily with full disclosure of both parties’ finances, at least three weeks before wedding and both of you with full legal advice about what you are doing. I don’t like prenups. They are constraining; I can see the point in a second marriage where you might want to protect assets for family from a first marriage for example. Second marriages are more likely to fail than first. If you’re in a first marriage and you are looking forward to a long and happy future together, I think if somebody presented me with a prenup I would tell them what to do with it. They can be upheld in court, provided all of those conditions that I have mentioned are done, then the court might take the view that “well you signed it”. If it is very unfair, obviously manifestly unfair and doesn’t meet needs, not reasonable needs but needs, then the court will probably adjust it. As I say, I don’t like them, I think that both parties can end up being embittered by them and I think that the strong warning sign from me is, if somebody is asking you to sign a prenup, is this a good sign of a marriage that is going to last forever?

Click here to listen to the full interview (available for the next few days).