Common Questions I get asked as a family lawyer

Common Questions I get asked as a family lawyer

1.    Q: How many years do you have to live with someone to become a common-law husband/wife?

A:  There is no such thing in law as a common-law husband or wife. By virtue of living together you do not acquire rights to, for example, maintenance or in respect of the other person’s pension.  There has been increased judicial frustration over recent years about the difference in the way spouses and cohabitees are treated which some feel led to judges taking matters into their own hands in the 2011, reported case of Jones –v- Kernott.  The newspaper summaries of this case can be found in the media section including my own comments on the judgement. 

2.    Q:  Can I divorce on the basis of irreconcilable differences?

A:  No! There is only one ground for divorce in England and Wales which is irretrievable breakdown of the marriage.  The ‘irretrievable breakdown’ has to be proved by showing that one of five facts apply.  Three of these facts require a period of separation and the other two are adultery and behaviour.

3.    Q:  If I petition on the basis of behaviour will it affect the financial settlement?

A:  No.  It is unusual for a court to take behaviour into account when dealing with a financial settlement.  In any event and even if you petition on a different basis, this does not prevent you from raising conduct in the financial proceedings.  See below.

4.    Q:  Why doesn’t the court take into account behaviour if it is the other party’s decision to end the marriage?  Why should the party not “in the wrong” be penalised?

A:  Since the Matrimonial Causes Act 1973 came into force the court has only had regard to behaviour in “exceptional circumstances”.  As I say to clients, you might as well read “exceptional” as if it were underlined several times and had flashing lights round it.  Unless the conduct has impacted on the available assets (for example gambling) or had an affect on the other person, for example, domestic violence impacting on earning capacity, it is, in my experience, very unusual for a court to get involved in attributing blame.  I know a lot of people are surprised by this, particularly if their spouse has had an affair and I say this will be irrelevant when it comes to dealing with the finances.  In practice people who have had an affair often say it is a symptom not the cause of the breakdown of the marriage and I think considerable time (and therefore expense) would be incurred if in each case the judge had to attribute fault to the marital breakdown. I do however understand that this is still a difficult point to accept if you are the person who did not want your marriage to end. 

5.    Q:  Why does English law discriminate against men on divorce?

London has been described for women as the “divorce capital of the world” because, statistically, women get better settlements than elsewhere in the world, particularly with regard to the duration of maintenance. When you practice family law, you realise the reason the law seems so discriminatory.  It is because in England & Wales when a couple decide to have children, often one person gives up or reduces their hours of work.  This then has a long term impact on their earning capacity which the court seeks to compensate. Statistically it is more likely to be the woman who gives up work with the result that it is men who are told they are looking at paying maintenance, if you live down south, for life, because it is not felt women, particularly those who have given up city careers, will ever recover the earning capacity they previously had.  If it is the man who has given up work and the wife who has continued with, for example, a career in the city, then he is entitled to ask for maintenance for life in the same way but because these situations are less common the general perception is that the law is discriminatory.  Certainly where there are young children, I advise women that we should ask for a maintenance order for joint lives but I was interested on a recent mediation course to discover these awards are far less common as you move up north.  The maintenance, although worded for joint lives, ends on remarriage and may reduce on co-habitation.

6.    Why does the law discriminates against women when it comes to post marriage co-habitation

In the same way as 5 above, the law is not in, my view, discriminating on the basis of sex, but it can feel like that because statistically it is more common for women to be receiving maintenance which can be varied on co-habitation. The payer of maintenance does have to disclose their cohabitee’s income and the cohabitee  will be expected, if they can afford it, to pay up to half joint expenses bills etc. but their income will not be used to pay an ex spouse maintenance.  The spouse receiving however may well find their maintenance reduces by more than half the amount of the bills on co habitation and they may be left with child maintenance only if living with a high earner.  I can see the logic that if maintenance is to compensate for loss of career (see 5 above) this can seem illogical.  I think, however, it is good for people to move on and as I say to clients, the hardest time financially is when you are trying to fund two households on an income that previously funded just one.  Hopefully once both cohabit which, statistically they do, all becomes a little easier.

7.    Q What is co-habitation

There is no legal definition of co habitation. Helpful I know! It is not as some assume, a set number of nights a week, but if asked to decide a court will look at the reality. I suggest   applying a ‘but for’ test - “were it not for the spousal maintenance, would this couple be co-habiting?” If yes, for example, regular “sleepovers”, and a degree of financial sharing, a court will probably say yes. I advise ex husbands and wives in some cases to agree a compromise, for example, reducing maintenance during co-habitation sometimes to a nominal amount (5p a year) to encourage co habitation to be tried because if it work,s it should make things financially easier for all.

8.    Q:  What percentage of income is maintenance?

A:  Although the Child Support Agency has a fixed formula for calculating child maintenance,  based on percentages of the payer’s income and depending on the number of children with a reduction for each night the child(ren) spend with the payer spousal maintenance is different.  To calculate this, the court looks at both parties’ incomes and outgoings which may well be affected by the capital settlement. This is because if, for example, one person has more capital to enable them to rehouse they will have less need for maintenance to pay a mortgage. 

9.    Q:  Why can’t a family lawyer tell me the answer to my case?

A:  This is because in England and Wales the individual judge hearing a case has quite a wide discretion.  There is a checklist of facts which have to be taken into account, including needs and contributions, with the first consideration being the children.  What family lawyers will generally do is give you an indication as to the likely bracket the settlement will fall into, but in most cases, it is impossible to guarantee what the result will be. This is because one judge may, for example, be more inclined to ring fence inheritance than another, and there are several areas of family law where judges do have discretion.

10.  Q:  My friend spent tens of thousands on the divorce but I have heard you can do it online very cheaply – is this true

A:  People do NOT spend tens of thousands of pounds on their divorce.  It is extremely unusual for a divorce to be contested and in most cases it takes between two and three hours’ worth of time if you are the petitioner and it is uncontested and less time if you are the respondent.  In practice, where people spend their money is arguing about how the finances should be divided. Yes, it is possible for people to spend tens and in some reported cases even hundreds of thousands of pounds on legal costs.  Part of the reason for this is that the law in some areas is uncertain, for example, in relation to inheritance. The court process can encourage people to take a somewhat positional approach which, added to the emotion and time invested in taking this approach, can make it hard to back down or reach a compromise.  People literally do spend more on the lawyers than the amounts they are arguing about. I think this is particularly unfortunate where both of them say they are going to leave what they get to their children because it just reduces the inheritance that is available. This is one of the reasons I am such a fan of mediation and collaborative law.

11.  Q: Can I stay in the home?

A: This will depend on your and your spouse’s specific financial situation. First consider the capital position including whether  your needs can be met by cheaper accommodation and if so is there is enough other capital to enable your spouse to re-house in similar accommodation (i.e. if you stay in the home and will have 5 bedrooms and your spouse can only afford a studio flat unlikely a judge will think this is fair), whether your needs can be met by cheaper accommodation and the children are a priority so if there is only enough for one house this will normally be used for the spouse with whom the children are living (sometimes there is a sale when the children are 18/finish education and the proceeds divided then).  Consideration needs to be given not just to capital but also income.  Can the income that is available which may include post separation include benefits, for example, working tax and child tax credits, meet the needs of 2 households?

12.  Q: Does my spouse not have an obligation to provide a roof over the children’s head.

A: The answer is “it depends”!  The children’s needs are the first consideration, but if there is not enough money, it may not be practical to keep the current home and in some cases, other options including Local Authority accommodation will need to be considered.

13.  Q: Can I force a sale of the jointly owned house.

A: You can get a judge to.  If the court orders a sale and the other owner still refuses to co-operate then a judge can step in, even signing the contract and transfer.

14.  Q: Can I get my ex out the house – it is unbearable living together.

The court can make orders under the Family Law Act where co – occupation is or will cause harm to one of the owners or children. Harm can include emotional harm but occupation orders requiring a person to leave their home are still regarded as draconian remedies, not the solution to the delays in resolving financial issues.  If possible a court will try and regulate the occupation, for example, separate bedrooms and using rooms at different times.  If an occupation order is needed, for example, due to violence, then these can be obtained quickly, the day the application is made and without the other person knowing until after the order is made, although they will be giving the opportunity to oppose or vary the continuing order very shortly afterwards.

15.  Q: I’ve always looked after the children now my ex is threatening to give up work and do so.

A: A common threat, particularly when the higher earner is told about the maintenance obligations.  Also one that is rarely carried through and, if it is, can be conduct that a court takes into account assuming the judge does not think the children’s residence should be with that parent. The status quo is very important in children cases and separation in itself is not a good reason to change the arrangements the children are used to.  If the threat is made try and reason with your ex, and through a lawyer if you have no joy. In this market people regret hot headed resignations!

16.  Q: How can I force my ex to see the children more – they want to?

A: This is an unusual problem but can be just as frustrating as when both want to see the children at the same time. Ultimately a parent cannot be forced to see a child.  If both parents refuse to look after their child(ren) social services intervene. It can be very hard for the parent who becomes very much a sole parent if the other parent ignores the children’s requests for contact. I recommend trying to find out why.  Often a parent who was previously involved ceases contact because of their own issues following the separation from guilt to bereavement.  Counselling may help, as will knowing the children are not blaming or angry with the parent so regular calls or letters if the telephone is not answered, and cards for special occasions.  If it is too hard immediately following separation remember time heals and leave the door open.


17.     Q: How long will it take?

A: Another it depends from me!  Average time to get to decree nisi is 4-8 months. Vague I know, but it does depend on how quickly the court deal with paperwork which varies considerably between courts and depending on the time of year (Summer holiday period does lead to delays). If you want things dealt with quickly you can speed things up by ensuring quick turnaround on paperwork. In one case of mine, the couple went to court issued the petition together, the court gave the husband, who was the Respondent, the issued petition and acknowledgement of service form which he completed there and then handed back.  The wife then filled in the forms to apply for decree nisi and gave them back to the court the same day and had decree nisi a month later.  Decree nisi is not the final stage, this is decree absolute which, unless there is a good reason (child about to be born to one or wedding booked), cannot be applied for until 6 weeks and a day after decree nisi. There is no requirement to apply for decree absolute straight away (even after a year you can do so, you just have to do an additional statement confirming that no child has been born to the parties, there has been no reconciliation and setting out the reason for delay). People normally delay applying until after finances are resolved because not being a spouse can have implications if one person dies before finances are agreed, for example, the survivor will no longer entitled to spousal benefits under a pension, reducing deceased’s estate.

18.  Q: My spouse doesn’t want to see a solicitor does he/she have to?

A: No.  It is not compulsory, and the divorce forms come with leaflets explaining how to complete them.  When it comes to finances, the judge looking at any agreed order may recommend the spouse who has not had legal advice takes it, and in some cases, even ask both spouses to attend a short hearing to check the order has been understood and if a judge feels it is favourable to one he or she may well say so. If, however, both are happy, and there is no concern about third parties (e.g. due to insolvency) then the judge should approve the order if it is what both want.

19.  Q: Can we agree things without solicitors to save money?

A: Yes you can.  Any agreement reached is not, however, binding unless or until it is approved by the court within divorce proceedings.  I often get asked to draw up a consent order reflecting the agreement reached and am happy to do so. If there has not been full disclosure and this is not wanted this is fine with me as well, although due to insurance I will ask that disclaimer is signed acknowledging there has not been disclosure.  The court will not approve an order without a summary of both spouses’ financial positions and if significant assets are left off this form and a spouse can subsequently prove they were unaware of them, this may be grounds to have the order set aside and for the court to consider whether a new order should be made

20.  Q:  I feel completely traumatised, is anything worse than this?

A:  Having been a family lawyer for so many years, I do think in some cases divorce is actually worse than anything, even bereavement (and there is for some considerable grief associated with the end of the marriage).  My own brother is an oncologist and he says his job brings out the best in extended family and friends.  Unfortunately in some cases, divorce brings out the worst.  People cannot help taking sides and this can encourage acrimony and bad feeling.  The divorce process expects people to be very open about their family life, their finances and new relationships they may have formed.  A lot of people are uncomfortable with this and find it hard to deal with this information when the spouse provides it.  All I can say is it really does get easier. Deal with each stage a step at a time.