Questions to ask before marriage

The New York Times

have produced an eminently sensible list of questions to ask your future spouse.

Here's mine:

IF YOU ARE UGLY AND RICH

Are you marrying me for my money?

IF YOU ARE POOR AND GORGEOUS

Are you marrying me for my looks?

IF YOU ARE A MAN AND THE WOMAN YOU HAVE BEEN DATING FOR 2 YEARS WEARS A DIFFERENT OUTFIT EACH TIME YOU SEE HER?

How much money do you spend on clothes?

IF YOU ARE A WOMAN AND THE MAN YOU HAVE BEEN DATING FOR 2 YEARS ALWAYS WEARS THE SAME JACKET

How often do you wash?

IF YOU ARE PAUL McCARTNEY

Are you marrying me for my fame and fortune?

IF THE ANSWER IS NO

Do you mind if we use a lie detector?

IF YOU ARE A MIDDLE AGED ENGLISH WOMAN MARRYING A TURKISH WAITER

Are you marrying me to try and move to England?

IF YOU ARE MARRYING ZARA PHILLIPS OR ANY OTHER ANIMAL LOVER

If your horse and I were both ill, which one would you sit up all night with?

A Place of Sanctury

Ruth Kelly has announced that she is keen to introduce rooms of sanctuary in the homes of battered women who no longer live with their abusive ex partners.

The rooms will contain Closed Circuit TV cameras, alarms, reinforced doors and windows, security lights, smoke alarms. For anyone who seeks to renew their household insurance all of the above are normal requirements apart from the CCTV cameras. So nothing new there. This Government is good at making announcements which sound like great new initiatives when in fact they are based on simple common sense. The scheme will be the responsibility of the Local Councils so no doubt they will be responsible for funding it too. I bet they're pleased. Has anyone calculated the likely cost? Is there a budget? Say 10 houses per 1000 households? Or, is it another open ended commitment like the access to justice for anyone visiting our country and claiming asylum?

Christmas Contact

Want to take the kids skiing for Christmas but your ex partner won't let you?

What's the normal Christmas contact that a Court would order?

Alternate Christmas, Easter and New Year each year between parents.

A typical Order will have the handover at 2pm on Christmas Day, alternating each year, so that one year mum has Christmas Eve and the present opening and the next year dad does. An alternative is to have the whole day one year and miss it completely the next.

In respect of holidays, they should be regarded as great opportunities for your children to see the world. Some dads will pay £10 000 to take their children to the Caribbean for Xmas but nothing for food and maintenance throughout the year. Horrendous behaviour and the bain of the Child Support Agency (renamed Child Maintenance and Enforcement Commission) but depriving children of such a fantastic experience will not solve the maintenance issue.

As your children get older, they will have a say. This can be more effective than going to Court, mum not letting the kids go to Disneyworld with dad is something that mum will have to explain to the kids herself. Most parents, no matter how much they hate their ex spouse will be unable to be so mean to their own children!!!!!!!!!!!!!!!!!!!!!!!!!!!!

NON PAYING DADS TO BE EXPOSED

The Government has announced that one of the new aspects of the replacement agency for the Child Support Agency will be that non-paying dads ( NPD's) (it is normally fathers but there are some non paying mothers out there) will now be named and shamed on a website.

Already people are bleating that this will be ineffective and is a wasts of time. Why not come up with some alternatives? My suggestions:

1. All dating agencies must have a link to the NPD's website and all members must be labelled NPD's if they are not supporting their children.

2. All NPD's who purchase or lease a car must have a registration plate with NPD at the start.

3. All football stadiums must have separate stands reserved for NPD's and those with ASBO's

4. All Estate Agent's to include in their details if an NPD is selling his house and to inform the new Child Support Agency .

I think that might work!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Ozone Layer is Broken

Going through separation and divorce is a time of huge stress. Anxiety levels can soar and people become paralysed with fear of the future.

A way of dealing with these anxieties is to separate them into micro and macro worries.

Macro worries

These concern our world such as global warming, increasing crime rates, lack of N.H.S. dentists, the IRAQ war etc. When a person is anxious, such matters which are outside their control can affect them more deeply. You can read about the death of a teenager in a car accident and burst into tears. Recognise that you are emotionally vulnerable and avoid watching the news etc.

Micro worries

These are your own concerns. Credit card bills, noisy neighbours. work commitments, childcare issues and the overload - your divorce!!!!!!!!!!!!!!!!!!!!!!!!

Try to separate your concerns into those you can solve and those that are out of your hands. Worrying about what type of order a judge may make is simply that, worry. There are certain administrative things you are required to provide in your divorce, try to deal with these boring tasks as soon as possible. Then attempt the impossible -forget about it!!!!!!!!!!!!!!!!!!

WHAT DO YOU WANT FOR CHRISTMAS?

WHAT NEXT?

Anyone contemplating divorce or separation would be wise to wait until after Christmas.

If there are children involved they will grow up to hate Christmas, a time of excitement and fun filled family memories will be turned into a reminder of loss and mourning.

There is no good time to tell your partner you want out, but Christmas is the worst possible time. It exaggerates and emphasises the pain.

Instead buy yourself a diary and notebook and plan your new life discreetly.

Lots of people finally make the decision to divorce after Christmas because the expectation of jolly times and happiness throws into stark relief their own misery. January and February are usually busy months for divorce lawyers. If your relationship is going through a rocky patch and yet again you are spending Christmas with the in-laws discuss cancelling the arrangements with your partner. If he/she refuses to listen then he/she is probably soon to be your ex. However, if you think your relationship is fixable it is worth making the effort before it is too late.

On the other hand, if you can't stand the sight of your partner and even his/her breathing drives you mad, then design your own advent calendar. Have it as a countdown to freedom or divorce with January 3rd replacing Christmas day!!!!!!!!!!!!!!!!!!!!!!!!!

Get the police on your side

In matters of domestic violence there appears a wide disparity in the advice people receive from the police.

I always advise my clients to call the police at the first sign of trouble. It is a priority of this Government to focus on domestic violence and racially motivated crimes so the police are supposed to prioritise such incidents. Not so when it comes to anecdotal incidents I've been told about.

" If you want to sort this out get your solicitor to take him to Court. That's what you pay her for."

"Next time you are involved in a domestic incident don't call the police."

" I know he's been convicted and told not to contact you but he may have called your number by mistake. If it happens again we will arrest him."

" I know she's admitted that she threatened to kill you, but she did not have a knife in her hand at the time and women can get away with saying such things so we will not be arresting her."

The police have a statutory duty to investigate incidents such as a threat to kill. If you are in fear call them . If violence is taking place call 999. Do not be fobbed off.

There are civil procedures available but they are expensive and those qualifying for public funding will usually not receive assistance if they have not involved the police!!!!!!!!!!!!!

The Secret Wish

I know a young boy who attended his father's wedding recently. In the joviality of events he was asked to make three wishes by a passing drunken adult.

OK he said:

Number 1 - I want to be a famous footballer

Number 2 - I want my mum to stop being mean to me.

Number 3 - I want my mum and dad to get back together!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This not so secret wish is shared by all children of divorced parents. Be aware that regardless of how bad your marriage and home life are, your children would prefer things to carry on rather than have one of you leave. Helping your children accept that their wish will not come true is a parenting challenge that should help distract you from your own problems!!!!!!!!!!!!!!!!!!

How much money will Heather Mills get?

Ready to place your bets?

It looks like the fight of the century is going all the way to a final hearing. Given the assets involved the legal costs are a mere puff to the battling McCartneys, so the chances of a settlement look a long way off. The only way to settle is to stop playing the game and both the McCartneys appear determined to finish!!!!!!!!!!!!!!

So, what will Miss Mills get?

How about £38,000,000 ? She is 38 after all.

What about £64,000,000 ? He is 64 and very, very rich.

WHAT WILL A JUDGE DECIDE?

The Judge will have a very wide discretion and can take all the factors of the case into account, based upon certain guidelines which do not include behaviour alleged in a divorce petition. Unless that behaviour is so severe it would be unfair to ignore it. For example, a man shoots his wife and she cannot work again. She needs compensating from capital plus he can't pay her any maintenance because he is now in prison!!!!!!!!!!!

So what is the point of Miss Mills defending her divorce? We're back to winning that fight again.

WHAT FACTORS ARE RELEVANT?

SHORT MARRIAGE

The aim would be to let each party retain the assets they brought to the marriage and divide the assets acquired during the marriage on an equal basis. However, if one party's contribution produces that growth then there should be a departure in their favour.

The length of the marriage is an inarguable fact, less than 5 years.

STELLAR CONTRIBUTION

If one party's ability and contribution to the finances is outstanding there should be a departure in their favour.

Paul McCartney is recognised globally as a phenomenal musician.

CLEAN BREAK

The Courts are required to consider a clean break, in other words make the parties financially independent of each other. There is sufficient capital in the pot to settle any potential maintenance claim that Miss Mills may have.

CHILDREN

Children have a right to share the living standards of their parents. The needs of the child are the first consideration. The Court will want to ensure a similar standard of living in both households. Helicopter each then. Normally I would add that a private education would be included but Paul McCartney chose to educate his other children via the state system. An important choice given his wallet. Maybe he will change his mind on that one considering the state of our education system!!!!!!!!!!

To be continued.....................

Divorce and Your Credit Score

Where's our money gone?

Once the decision to separate is made it is important to protect your credit score. It it easy to check your rating on either:

experian

or

equifax

Not protecting your credit score can prevent you being able to afford to purchase a house post separation. An excellent score will result in interest rates on a mortgage being offered at around 4.2%, a poor score can double that rate.

KEEP PAYING THE MORTGAGE

Even if you have moved out of the former matrimonial home, if your name is on the mortgage then allowing it to go into arrears will have far reaching financial consequences for the future. No matter how much you want your spouse to suffer, don't cut off your nose to spite your face!!!!!!!!!!!!!!!!!

Heather Mills and Paul McCartney Saga

KETCHUP ON THE CARPET

The relentless fascination and obsessive coverage of the Heather Mills- Paul McCartney divorce saga continues.

For me, the tomato ketchup throwing incidents have a ring of truth. They create a picture of domesticity, not on billionaire row but one which we can all relate to. I'm not sure I know anyone who's actually thrown a ketchup bottle, but I guess that everyone I know owns one.

A ring of truth is important in any statement filed in Court. I remember an incident described as "he smashed the window with a jar of Chicken Tonight". We changed the statement to " he smashed the window with a jar of cooking sauce called Chicken Tonight" in case the judge had never heard of Chicken Tonight. Either way it created a much more vivid picture than " he smashed the window".

The vilification of Heather Mills is unpleasant to watch, rather like a public execution. She is a beautiful woman so references to her artificial limb are repeated ad nausea. Pity poor Anne Widdicombe, Clare Short and Sarah Ferguson who have all had terrible bashings by the press, centred on their looks. We don't read comments about how short George Bush is and how messy his hair is, but we do get lots of articles about Condoleezza Rice's outfits and suggestions that she may be romantically involved with various foreign counterparts. If there was less sexism a press report might read:

" George Bush, only 5 foot 8 inches tall with wiry grey hair stood with Condoleezza Rice, who looked extremely smart in a knee length tight grey skirt suit which displayed her shapely calves to good effect, getting up at 5am to work out has certainly paid off for her. George on the other hand needs to work on his abs. They greeted the president of Pakistan".

Only their names and the last sentence are relevant. Remember that when you file a statement in Court, stick to the facts with a ring of truth, judges hate long statements - they have to read them after all!!!!!!!!!!!!!!!!!!

Heather Mills and Paul McCartney

Allegations, Allegations, Allegations

The front page of one of the newspapers I am least likely to buy ever drew me like a magnet today, which cost me 45 pence. It goes by the name of:

The Daily Mail

What grabbed my attention was the Paul McCartney -Heather Mills divorce saga and the Madonna adoption drama.

I will save the adoption for another blog.

In respect of the Heather Mills and Paul McCartney dirty washing debate, in my experience, which is based upon a combination of:

• professional
• personal
• romantic fiction I read when I was 15
• social psychology I studied when I got bored of maths options at university
  

their relationship is not over!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

According to the media reports they are heading for a defended divorce in open court. A defended divorce is rare nowadays, but the reported cases make amusing reading (one I read made me laugh more than Ricky Gervais, and he is my favourite, favourite comic!!!!) . Again, according to media reports, the celebrity protagonists, who do so much work for charity, appear determined to fight it out, no matter what the emotional cost!!!!!!!!!!!!!!!

Go paintballing, get counselling, get back together!!!!

Why does a non paying dad get to see his kids?

It can seem dreadfully unfair. You struggle to buy the kids school shoes and your ex expects to see them when he/she chooses and pay nothing towards their keep. He/she may even demand that they arrive with a packed lunch !!!!!!!!!!!!!!!

Equally unfair is the dad (and it's usually the dad) who pays for everything so that his children don't suffer but is frequently let down by the mother cancelling contact visits, refusing ever to let him see them on Christmas Day, and treating his request to take them on holiday abroad in the same way an alien expedition to Mars would be greeted.

WHY SO UNFAIR?

The Court's concern is the child. The public policy is that it is the child's right to have a fulfilling relationship with both parents, no matter how bad or feckless those parents are. Provided, of course, that they are not at risk of harm.

The all paying dad would obtain more contact with his children if he went to Court, probably even alternate Christmas's, but he won't do it because he puts his children first.

The non paying dad (and it's usually the dad) does not put his children first. He may even quit his job to avoid a Child Support Agency assessment. I do not want to stand up for any of these people but the ones who show an interest in seeing their children are better, surely, than the ones who simply disappear?

Can I stop my spouse divorcing me?

No

How do I stop my spouse divorcing me?


There are very limited circumstances in which you can stop a divorce.


If a petition is based upon 5 years separation the Respondent may be able to object on the grounds that the divorce will result in grave financial hardship or other hardship and that it would be wrong in all the circumstances to grant a divorce. The facts need to be specific.


In all other cases, objecting to the divorce and filing an answer (defence) and/or your own petition will make the divorce more expensive, more painful and more time consuming but it
will not stop it happening!!!!!!!!!!!!!!!!!!!!!!!


If you think about it, filing a bare defence states that the marriage has not irretrievably broken down. The parties are in court and one party has made allegations concerning the other's behaviour. The other party not only has to show that these allegations are incorrect "I'm not untidy, I always hang my coat up" type thing, but also that the marriage is still intact. How is this possible? Why is your spouse trying to divorce you as if your marriage isn't worth a tin of beans?


The alternative, to accept that the marriage has broken down, but it's because of your behaviour not mine, tit for tat, will result in a divorce, the opposite of what you wanted!!!!!!!!


Reconciliation


The only way is to persuade your spouse that a reconciliation is in order. Sounds expensive, but not as expensive as a divorce!!!!!!!!!!!!!!!!!!!

Can one lawyer represent both of us?

FRIENDLY DIVORCE?

Couples separating without acrimony, who have grown apart and no longer love each other and simply wish to go their separate ways, often ask whether one solicitor can represent them both.

The answer is always no, no matter how friendly you are.

One lawyer cannot represent both parties in a divorce because this could result in a conflict of interest. Divorce is a form of litigation and the English Legal System is adversarial. A lawyer will advise you what is in your best interests, which, given the nature of the dispute, is unlikely to be in your spouse's best interests.

It is not necessary, although it is advisable for you both to have a solicitor. One party could instruct a solicitor and the other could represent themselves. However, the solicitor drawing up the papers will be acting on behalf of one party only and this is worth remembering if you are the unrepresented party.

SEPARATION, DIVORCE AND FINANCIAL BEST INTERESTS

It is also worth remembering that some people don't act in their own financial best interests. Instructing a solicitor does not compel you to take his/her advice, although it does seem a pointless exercise to instruct and then not act upon it. Some people simply wish to know their legal rights and then are quite prepared to act against them. For example, men who have left their wives for other women; men whose wives are the main breadwinners and who are too proud to claim their share; men who don't want their children to be affected financially by the divorce; woman who are scared of their husbands; women who would rather go without than take "his money".

The Ethics of Dating During Divorce

YES OR NO?

People often ask:

"Can I date now that we've started divorce proceedings?"

The answer most often is:

"No!"

Amicable divorces can be turned into acrimonious divorces overnight if your spouse finds out. At the very least it will complicate financial issues and lead to questions concerning potential cohabitation. It can also affect the divorce itself, because behaviour after divorce proceedings have commenced is relevant.

Divorce is one of the most traumatic events an adult can go through and as such has an impact on your own, and your spouse's behaviour. So, even if your spouse has left you for someone else, expect a reaction if you start the dating game yourself. Divorce turns the most rational, fair minded individual into an irrational twin.

Sometimes of course, dating can be a deliberate attempt to get your partner's attention. Who can forget Princess Diana's revelations? However, the sad fact is that if your spouse wants out, has met another and no longer finds you desirable or attractive, dating someone new is not going to make him/her change his/her mind. What it may do though, is make him/her become more awkward, such as refusing to let you see the children because your new girlfriend has moved in, or refusing to have the kids overnight so that you can't go out without paying for a babysitter!!!!!!!!!!!!!!!!!!!!!!!

Seamless Cohabitation To Marriage

CIVIL PARTNERSHIP AGREEMENTS

For many same sex couples the change in the law in December 2005 to allow them to have a wedding and get married under the label of a Civil Partnership has been welcomed as another obstacle removed in the fight against discrimination.

SEAMLESS COHABITATION

Given that there is no case law available to Judges to consider in the Dissolution of a Civil Partnership, and given that Marriage and Civil Partnership breakdown are covered by the same statutes, Judges will no doubt refer to Divorce case law for guidance.

WHAT DOES DIVORCE CASE LAW TELL US?

There is a distinction between short marriages and medium to long term marriages in the treatment of Capital. However, there is a but, AND ITS A BIG ONE. In cases of seamless cohabitation, i.e. short marriages of 1 to 5 years with a period of cohabitation immediately before, Judges in recent cases have included the period of cohabitation as counting towards assessing the length of the marriage or relationship.

WHAT IMPACT WILL THIS HAVE ON PEOPLE ENTERING CIVIL PARTNERSHIPS?

It is likely that many same sex couples have cohabited for a considerable period of time, given that they have been unable to marry or have a Civil Partnership until recently. They need to be aware that an early breakdown of their formalised relationship may not be treated as a short affair by the Courts. They need to seriously consider the financial implications and the benefit of a Pre-Nuptial/ Pre-Partnership Agreement.

WHY?

We all know heterosexual couples who lived together quite happily for years, then as soon as they got married, their relationship collapsed. This strange phenomenon could affect homosexual people too!!!!!!!!!!!!!!!!!!!

Child Support Agency

WELL THAT'S ANOTHER FINE MESS YOU GOT ME INTO!

The Work and Pensions Minister, John Hutton, announced on 24th July 2006 that the Child Support Agency was to be abolished. Why? Because it was too expensive and failing (in other words rubbish) at collecting Child Maintenance from recalcitrant parents.

GREAT. WHAT WILL IT BE REPLACED BY?

A tougher, more streamlined body. A simpler system that will encourage people to make their own arrangements and have tougher measures of enforcement.

HOW?

Encouragement to Do It Yourself (DIY) includes -

• Stop making parents with care who are on benefits make a claim AND allow them to keep more of the child maintenance they receive before it hits their level of benefits.
• Charge the non resident parent for the new assessment service if the parent with care has to make a claim. Given that it's a readily available, easily calculable, set formula linked to the non resident parent's net income I suggest the charge should be £10,000.00!!!!!!!!

New enforcement plans include -

• Removal of passports
• Use of curfews
• Name and shame. My favorite (see previous post Children- Maintenance July 14th 2006)

WHEN?

The Government's ambition is to have some of it in place by 2008, but the Government also had an ambition once to end Child Poverty and improve the National Health Service!!!!!!!!!!!

The Government will produce a White Paper in the autumn with final, detailed plans.

HOW?

Both the Old Scheme and the New Scheme will be closed down and everyone will have to make a claim on the New, New Scheme, at the same time ensuring that no claims are lost and no children suffer financial hardship. Right!!!!!!!!!!! Does anyone remember what happened when the new Tax Credits System was introduced? Does anyone remember the chaos over the Criminal Records Checks for teachers? Does anyone remember decimalisation?

Cohabitation - A Change in the Law?

WHY BOTHER TO GET MARRIED?

There are 2 differences between getting married and living together:

1. A wedding
2. Legal rights and obligations

For some people the wedding is the most important bit, and we've all been to some great dos where no expense was spared but the couple in question have got nothing in common, not even sudoku!

The change in the law to allow same sex couples to have a wedding and the legal rights and obligations of marriage, in a Civil Ceremony, has created equal rights for homosexual couples. We can't call it marriage though, because it would upset some religious people, and looking at the state of the world, a lot of them are upset enough already!!!!!!!!!!!!!!!!!!!!!!!

BUT WHAT OF THE COHABITEES?

Many people are calling for a change in the law to introduce similar rights and obligations to those couples who choose to live together, but who choose not to formalise their relationship. The Government is considering introducing laws to impose legal obligations on cohabiting couples, for example, if they had children or lived together for at least 2 years. I would advice caution here for the following reasons:

1. Some people choose not to get married, not just because they don't want to pay for a wedding but because they don't want to encumber themselves with the legal obligations that marriage entails. Their reaction to any legal commitment by default will be to live apart. Typically, the more wealthy male will still buy a house on his own, but the unemployed female and 2 kids will join the housing queue. She and the kids will probably stay with him 5 nights a week, but now she will have her own house and either work at Tescos 16 hours a week to qualify for working tax and child tax credits, or she will go on benefits.
2. It might upset some religious people!

Who Gets To Keep The Dog?

WE ONLY STAY TOGETHER BECAUSE OF THE DOG

This is not so uncommon, indeed there are plaques in many kitchens testifying such. Who gets the dog can become an insolvable problem. When separation looms the custody battle over the dog can cause huge problems.

A dog is a chattel, a possession, a good, a thing you buy, the same as a car or a pair of shoes.

SO WHO'S IS IT?

• Who bought it?
• Who for?
• What with?

Possession is 9/10ths of the law, but not 100%. If you can't evidence that the dog was bought by you, or was an outright gift to you, then you may have to part with it.

WHAT IF IT'S A GENUINE MATRIMONIAL ASSET?

Some judges, in unreported cases, have contrived to introduce a system of Residence and Contact. In a similar way to the Court's approach to children. The dog lives with one ex partner and the other has visitation rights, but this is unusual.

If you can't work out who the dog belongs to you have 3 choices:

1. Negotiate. After all some people pay £1000's of pounds for medical treatment for their dog. What is your dog really worth to you?
2. Settle. Let him/her have it.
3. Stay together for another 15 years of misery, maximum, the dog may die sooner than that!

Children

HOW DOES DIVORCE AFFECT CHILDREN?

That depends on how their parents behave. No child is unaffected by their parents' divorce, and all children carry a secret wish that their parents will get back together, even 50 year old off spring like to see their divorced parents in the same room and being congenial! The pain is far reaching but some people doggedly refuse to end the battle. Apparently a fight breaks out at 1 in 8 weddings, and I bet a lot of these are caused by the divorced parents of the bride. I was at a wedding once where the groom's parents were both remarried and had been for years, but his mother refused to be in any photographs with his father. How selfish is that? Unsurprisingly the said groom has now emigrated to Australia!

HOW CAN I HELP MY CHILDREN COPE WITH THE DIVORCE?

- Encourage your child to express his/her grief, as long as the methods chosen are legal and cause no harm to others.

- Allow your child to criticise you. If you choose to end the marriage you will be blamed, even if you were regularly beaten by your spouse. Children cling to what they know, even those who are abused by their parents, so it is hardly surprising that they long for their parents to remain a unit.

- Do not criticise the other parent, there are plenty of other people who may relish hearing how awful he/she is but your children will be devastated, it's a certain way to knock their self esteem, second only to calling them an idiot or shouting that you wished they had never been born!

- Do not use your child as a messenger. If you can't bear to talk to your separated spouse then use a lawyer or an adult. Plus, children typically don't listen to boring instructions when they are on the way out the door.

- Do not pump your child for information about the other parent, they will feel disloyal either way. If your child chooses to tell you that daddy's new girlfriend is much prettier than you fine, but don't ask the question.

- Don't trick your children by introducing them to your new partner too soon and pretending this is a platonic friend. They will be hurt when they find out the truth, especially if they liked your new "friend".

-Try to let your children see you being civil to each other. Even if that only extends to an insincere "hello, how are you?" your children will feel so much better than being dropped off at the end of the road because mum, or worse, mum's new husband hates dad!

- Think about the future. Do you want to be an embarrassment to your children at their wedding? At the birth of your first grandchild?

READY TO COOPERATE?

A great website to help parents is www.uptoparents.org

A WORD ON DOMESTIC VIOLENCE

Be cautious in your dealings with your ex partner if he/she is abusive to you or the children. Children's physical safety is paramount and comes before their emotional well being for obvious reasons.

What to do about Domestic Violence

WHAT IS IT?

Sadly, Domestic Violence occurs all too frequently. It can range from pushing and shoving your partner, making threats, to actual assault. Domestic Violence increases in intensity over time, the more you tolerate the worse it gets. Acceptance of abuse fuels the abuser's anger, as does fighting back, smiling, looking at him/her, in fact anything you do can set the abuser off, and it is always your fault. If you are in one of these relationships there is only one thing to do - GET OUT!!!!!!!!!!!!!!!!!!

WHAT CAN YOU DO?

STEP 1

Often people tolerate abuse for years, becoming almost institutionalised and accustomed to their misery. The first step to breaking the cycle is to tell someone. I knew a woman who's husband broke her jaw and knocked her front teeth out and she told everyone she had been in a car accident. This was not a one-off and everyone knew she was lying but she thought she was covering up her humiliation and misery. Such behaviour colludes with the abuser, and makes it harder still to get out of the relationship.

So, tell someone. It's not as hard as you think and they have probably guessed what's going on anyway.

STEP 2

Tell the Police. If there is a history of violence in your relationship they will make a report and be alert for the next time you call. They cannot prosecute someone unless you contact them when the abuse is occurring or soon after, but the background is useful for them to know and will ensure they take your call seriously if the abuse happens again.

The Police have Domestic Violence Officers, who's job it is to offer victims support and refer them to agencies, such as http://refuge.org.uk who can help.

The average number of attacks people tolerate before contacting the Police is 35. What beating are you on?

STEP 3

The next time your partner becomes abusive tell him/her that you will call the Police. This change from victim role may surprise your partner and may be enough to stop the threats and or attacks. If it is not call the Police. If you are in imminent danger dial 999. This means if you think your partner is about to use violence against you. If the abuse stops at threats, call the local police number and file a complaint. Your partner will then be arrested, and if there is sufficient evidence charged. Support the Police and Crown Prosecution Service in any charges they make.

STEP 4

The Police will probably recommend that you take a civil action against your partner, known as a Non-Molestation Order and/or an Occupation Order. A Non-Molestation Order will have a Power of Arrest attached, and an Occupation Order may have one also. This involves instructing a solicitor and going to Court at least twice and is expensive unless you qualify for legal aid. This may not be necessary if your partner is on Police Bail, but if they have released him/her without charge you may need the protection of an injunction.

STEP 5

If you haven't already done so, take steps to end the relationship. People don't change, not without serious rehabilitation and/or counselling, and abusers rarely accept responsibility for their actions.

THE CHARM SYNDROME

Abusive people can be very charming, that's what attracted you in the first place. The outside world may regard you as very lucky to have such a great partner, your partner may suggest you are mad if you say you want out of the relationship and you may start to believe it. There is an excellent book for women in this situation (men are victims of abuse too but not on the same scale). This book is written by Sandra Horley, the Chief Executive of Refuge and is called "POWER AND CONTROL Why Charming Men Can Make Dangerous Lovers".

A FINAL WORD ON PERSONAL SAFETY

More woman are killed by lovers than strangers. One woman a week is killed in Britain by a lover or an ex-partner. If you are in a violent relationship think of it as an airplane that's about to crash. You are not the pilot and there is nothing you can do to stop it. If you try to collect your hand luggage you will die. Get out while you still can!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Divorce - Consent Order

WHAT IS A CONSENT ORDER?

A Consent Order is the legal document by which financial matters are finalised on divorce. Without this, you are vulnerable to your partner making a financial claim years later.

A Consent Order is like the contraceptive pill, it is 99.9% reliable. It can only be overturned if there has been fraud or mistake or an "intervening event". To qualify as an intervening event the event must be :

1. Soon after the Consent Order has been sealed by the Court (normally within 12 months).

2. Not contemplated and considered at the time of divorce.

3. Sufficiently large to undermine the terms of the Consent Order. That is, if the event had been known about at the drafting stage of the Consent Order then the terms of the Consent Order would have been altered.

Furthermore:

1. The Application to set aside must be made promptly.

2. There must be no disadvantage to third parties, who have acquired the relevant property in good faith and for valuable consideration.

WHAT IS INCLUDED IN A CONSENT ORDER

The Consent Order will deal with all the financial aspects which the Court has jurisdiction over.

1. The Former Matrimonial Home.Will it be sold or retained by one of the parties? If it is retained by one spouse (normally the parent with care of the children, will the other party have a charge over the property? Will the owner indemnify the other spouse on the mortgage?).

2. Other Assets.How will they be distributed?
Shares, property, family business, share options, endowment insurance policies etc,etc.
All assets of the marriage will be dealt with.

3. Personal Property and Furniture.Each party normally retains their own goods (unless needs dictate that valuable goods should be sold or transferred to the other spouse).

There is a standard clause which states that the goods are retained by the person in whose possession they are in at the time of the Consent Order, and couples should be encouraged to agree direct the division of their CD collection etc, as it is disproportionate cost wise to involve solicitors. This can be a source of amusement for your friends years later. One of my friends refused to hand over her ex husband's mountain bike and another had huge debates over an ashtray collection (they were nice ashtrays, from The Ritz, Annabels etc).

4. Pension Sharing.Pension sharing, or offsetting the pension against other assets maybe appropriate if there is sufficient pension provision accumulated during the course of the marriage.

5. Periodic Payments, Maintenance.Maintenance from one party to the other. If so for how long, two years? Until retirement? Until death or remarriage of the receiving spouse?

The Courts must always consider the option of a clean break and encourage the parties to be independent financially, but they will not order this if one party cannot afford to do so. If there are young children of the marriage the courts will normally make a nominal maintenance order for the parent with care of the children rather than a clean break.

6. Child Maintenance.Normally the Child Support Agency has jurisdiction for Child Maintenance (see previous post Children - Maintenance 14th July 2006). However, the Courts can make an Order for Child Maintenance, but either party can apply to the CSA for an Assessment after 12 months. The Government is seriously considering removing this facility because the CSA cannot cope with its workload, this should be kept in mind if you consider the option to revert to the CSA, or its replacement, in years to come useful. If so, do not include Child Support within your Consent Order.

7. Private Health Care, Insurance Cover Premiums, School Fees.
It is best to list all expenses, especially if one party receives benefits via his/her employment.

8. No claims bonus on car.
Often, the wife is younger than the husband, the husband has a car when the parties marry, then gets a company car, and the wife then drives on the husband's insurance for 20 years. It is important to get this transferred at the time of divorce as insurance companies may refuse to do so later. Plus, once the divorce is finalised, your ex husband may refuse to transfer the no claims bonus, despite it having been accumulated via your careful driving!

9. Debts.
Who will take on the responsibility of any debts of the marriage? If they are joint, will the paying party indemnify their ex spouse?

10. Neither party to have any claim on the other's estate when their ex-spouse dies.

11. Pets.
Who keeps them?

Each Consent Order is individual and it is essential to obtain legal advice relevant to your personal circumstances. It is also important to ensure that the document is properly drafted and you understand what you are agreeing to. For example, what are the implications of a nominal maintenance order? What happens if my ex spouse cohabits? The Consent Order says we each keep our personal possessions but my ex wife won't give me my bike back!!!!!!!!!!!!!!

Divorce - Separation

TYPICAL QUESTIONS ON DIVORCE.

SHOULD I DATE WHEN TRYING TO GET A DIVORCE?

No

SHOULD I SMOKE?

No

SHOULD I TAKE ANTI-DEPRESSANTS?

Do you feel anxious all the time? Do you worry about the future so much that you can't concentrate at work or enjoy time with your children? Do you burst into tears for no reason? Do you have thoughts about suicide or feel that life has no point?

If any of the above apply to you it is worth visiting your G.P.

WHY DOES EVERYONE I SPEAK TO WANT TO KNOW WHAT WENT WRONG IN MY MARRIAGE?

Just as when you get married, everyone asks when you are going to have a baby, so when you separate everyone feels they have a right to ask for details, even specifics about your sex life. It helps to talk things through with a few close friends, for everyone else, a standard "It's too painful to talk about right now." should do the trick.

SHOULD I TELL MY NEW PARTNER HOW MANY PEOPLE I HAVE SLEPT WITH?

If you are getting divorced you should not be dating, but.......

If you are a woman and it is more than 7 - NO

If you are a man and it is less than 7 - NO

SHOULD I WEAR A MINI-SKIRT?

If you are over 35 - NO

If you are under 35 and your thigh measures more than 19 1/2 inches at the widest point - NO

If you are a man - PROBABLY NOT

SHOULD I READ MY TEENAGER'S MAIL ?

If you want to find out something unpleasant and destroy the trust in your relationship forever -YES

Otherwise - NO

HOW DO I HELP MY CHILDREN COPE WITH THE SEPARATION?

Spend time with them, resist the urge to go out and get drunk. If you are no longer living with them, keep in regular contact, if they are old enough send them text messages and e-mails. Do not date, and do not criticise their other parent. Do not share your worries about the future with them, either financial or emotional, they cannot support you in this, but will feel even more anxious and helpless than you.

I DON'T WANT TO SAVE MY MARRIAGE SO WHAT IS THE POINT OF GOING TO RELATE?

Counselling helps couples and individuals deal with their loss, the breakdown of their relationship and moving on. Even if the divorce is your choice, it is likely that you will feel guilt and remorse for the pain you cause others, and sadness at the loss of your previous life. It is especially useful if you are the spouse who has been left. The divorce is often forced upon you, and you will be trailing behind emotionally, sometimes hoping for a reconciliation, even when your spouse has left you for someone new.

WHAT CONSTITUTES DOMESTIC VIOLENCE?

Any behaviour that you would not tolerate from a stranger in the street, verbal abuse, pushing, shoving, spitting, attacking someone with a broom, throwing food, wine or anything that comes to hand. None of the above is normal behaviour, honest.

WHY CAN'T I DATE WHEN IN THE MIDDLE OF A DIVORCE?

Lots of people do, but it increases the acrimony, and causes extra pain for your children. Research suggests that it takes 2 years to get over a divorce emotionally, and that any relationship pursued in the meantime will probably be transitional. In the words of Guns n' Roses "All we need is a little PATIENCE............".

Children - Maintenance

CHILD SUPPORT AGENCY

The Child Support Agency ( CSA ) has responsibility for assessing the level of maintenance the non-resident parent should pay the parent with care on behalf of the child on divorce. The Government intends to scrap the CSA, but it will be replaced by an alternative agency, there are no plans to return jurisdiction to the Courts, except perhaps for Consent Orders made after 03.03.03.

The Court can only become involved in exceptional circumstances, such as:

1. For a step-child who is regarded as a child of the family.

2. When the absent parent is habitually resident abroad.

3. If the non-resident parent's net weekly income exceeds £2,000.00 the parent with care can apply to the Court for a TOPPING UP ORDER.

4. For the costs of education.

5. For help with disability costs.

6. If a Maintenance Order was made by the Court before 03.03.03.

7. If a Maintenance Order was made by the Court after 03.03.03 and the Order is less than 12 months old. After that either party can apply to the CSA for an assessment. (This facility may be removed as mentioned above in which case the Courts will retain Jurisdiction).

WHAT IS THE CSA ASSESSMENT?

For claims made after 03.03.03 there is a simple formula, based upon the absent parent's net income after certain allowable deductions. This formula is explained on the CSA website http://CSA.gov.uk. This formula is also explained on our website http://bsdivorcesolicitors.co.uk

The amount payable is reduced if the absent parent has other children living with him/her.

The assessment is reduced again if the assessed child stays with the absent parent more than a certain number of nights per year.

The parent with care's income is ignored, as is the income of a cohabitee if the absent parent is living with someone.

The absent parent can apply for a downward variation and the parent with care can apply for an upward variation provided you can show that a set category for variation applies.

The formula is simple but the process is not!!!

Where applications were made prior to 03.03.03 the formula is very complex.

NON-PAYERS

These people do exist. There are , of course, some genuine cases, but some parents blatantly refuse to pay anything towards their own children's upbringing. The CSA have various methods of enforcement but have not been successful in making many absent parents pay to support their own offspring. My preferred method of enforcement would be to make them wear billboards whenever they went out in public. They could be similar to warnings you see on cigarette packets:

DATE ME IF YOU DARE - MY CHILDREN COULD BE STARVING AND I DON'T CARE

I LIKE TO SPEND ALL MY MONEY ON MYSELF - SO YOU ARE PAYING FOR MY KIDS

I AM MEAN WITH MONEY - ASK MY KIDS

Divorce

HOW TO TELL IF YOUR SPOUSE WANTS A DIVORCE

IF YOU ARE A MAN

1. A classic sign is INDIFFERENCE. Unfortunately, men often misinterpret this and think that their marriage has improved. A lack of nagging and fighting does not usually mean that your wife has settled down to accept that you can come and go as you please, treat the house like a hotel, throw your washing on the floor and fall asleep on the sofa every night.

An illustration. Years ago I knew a cleaner who worked 60 hours a week and brought up 3 children whilst her husband was a drunk. Her 14 year old son said to her that when he grew up he wanted a wife just like her. All his mates' mums were horrible, they locked out their husbands, threw their clothes out the windows of their high rise flats and generally screamed like fishwives if their husbands dared to come home drunk. His mother replied that the reason she made no fuss was that she did not care if his father never returned and with that changed the locks and her life by booting out her husband.

Expect a divorce petition in the mail if you regularly return home at 2am and questions are no longer asked.

2. YOUR WIFE'S APPEARANCE IMPROVES

Your wife may suddenly lose 3 stone (you might think it happened overnight but she has probably been on a diet for 6 months) or change her hairstyle and get a job she enjoys at last. This doesn't mean that she has found another man, more likely that she has found herself and she may discard you with the old frumpy image.

3. YOUR WIFE'S FRIENDS GET DIVORCED

This is the old safety in numbers. Plus, people tend to chose friends they have something in common with. So, if your wife is telling you that all her friends' husbands are rats beware, what is she telling them about you?

IF YOU ARE A WOMAN

1. HIS BEHAVIOUR WORSENS

The majority of divorce petitions in England are filed by women and the majority are based on behaviour, i.e., it is unreasonable to expect this woman to live with this man given his behaviour and her temperament.

Men are horrible then? Not necessarily. If a man wants a divorce, or out of any relationship for that matter, a throwback to chivalry makes it very difficult for a man to dump a woman. Therefore he will behave in such a way to make her dump him. Sometimes this backfires and there are plenty of doormats around, but generally, if he doesn't call it means he doesn't want to see you. Men accept women criticising them, they are used to it, what they have difficulty with is abandoning a woman, some just can't bear to see a woman cry. Anger they can cope with.

2. HE MEETS THE ONE

Lots of men have long term affairs which they consider separate to their marriage (especially if their wife has removed herself from the matrimonial bed) and would not dream of leaving their wife, children and home.

The worry is when he thinks he is truly in love for the first time ever, forgetting your courtship and how desperate he was to marry you twenty years ago. She will be 10 years younger than you, a work colleague, and he will buy her a bracelet, and take her to European cities for romantic breaks, and you will find out because he wants you to find out and divorce him!!!!!
SAVING YOUR MARRIAGE

Usually, by the time people decide to get divorced it is too late to save their marriage. An annual review is a good idea, like a car service or a medical, study your marriage together and plan the next 12 months. If this sounds like too much hard work, keep my number handy, you will probably need it in a few years!!!!!!!!!!!!

The Myths of Cohabitation

COMMON LAW HUSBAND AND COMMON LAW WIFE

There is no such thing as a Common Law Husband or Common Law Wife in English law. Couples who chose to live together without getting married do so without the benefit of matrimonial legislation and there is no notion of fairness or reasonableness built into the law. The rules that apply to determine the division of assets are exactly the same rules that would apply to two strangers happening to live under the same roof.

THE MYTHS OF COHABITATION

- Unmarried couples living together for a period of time acquire the same rights as married couples - THEY DO NOT

- A cohabiting partner can claim maintenance from their partner if the relationship breaks down - THEY CANNOT (no matter how long they have lived together)

- An unmarried partner's name is not on the mortgage but she can claim an interest in the property because she has paid the utility and food bills for years and has decorated the house and paid for the carpets - SHE CANNOT ( such payments are irrelevant)

- An unmarried partner will automatically inherit the estate if their partner dies, so a will is unnecessary - THEY WILL NOT

- Unmarried fathers have the same rights towards their children that unmarried mothers have - FREQUENTLY THEY DO NOT

WHAT CAN I DO?

Unmarried cohabitation is on the increase, as is relationship breakdown. Couples should properly record the shares in which the property is owned, nominate beneficiaries under pension policies and life assurance policies and make a will, especially if they have children.

Draw up a COHABITATION AGREEMENT. They have yet to be fully tested in court but provide useful evidence of a common intention.

Or...........you could get married!!!!!!!!!!

Divorce - Procedure

HOW CAN I GET A DIVORCE?

Many people want to divorce because they simply don't love each other any more. Why not? It is important to think through your feelings and try to fix things. Unfortunately, by the time people consult a solicitor it is far too late to save their marriage.

It is NOT possible in English Law to get divorced because you have fallen out of love with each other. If you file for divorce you are known as the petitioner and your spouse is known as the respondent.

IRRETRIEVABLE BREAKDOWN

The only ground for divorce is irretrievable breakdown and the Court can only make a finding if sufficient evidence is supplied as proof of one of the five facts:

1. Adultery
It is prudent only to proceed on this basis if the other side is prepared to sign a confession statement. If not, you could use their inappropriate behaviour with a third party as evidence for a behaviour petition.

2. Behaviour
The most popular petition. The behaviour cited needs to be sufficient that it is unreasonable to expect the petitioner to live with the respondent, given the petitioner's disposition. The latest incident of behaviour listed must be within 6 months of the filing of the petition, otherwise the behaviour is regarded as stale. There are a lot of standard complaints, lack of love and affection (woman's petition), lack of sex (man's petition), no help with housework (woman's petition), spends too much money on clothes (man's petition), loves her cat,dog,horse,goldfish more than me (man's petition), obsessed with the internet (woman's petition).

3. Desertion
Rarely used. It is necessary to show that the respondent has deserted the petitioner for at least 2 years with intent to bring cohabitation to a permanent end, without either just cause or the petitioner's consent.

4. 2 years separation
With the respondent's consent.

5. 5 years separation
Without the other party's consent. This is a long stop date and the respondent can expect a petition to be delivered 5 years and two weeks (allowing for court administration) after the date of separation.

DIVORCE AND MONEY

It is possible to obtain a divorce without finalising the finances, but it is very unwise to do so, as the door is left open for your ex spouse to make a potential claim in the future. It is also unwise to proceed on a verbal agreement without finalising matters in a Consent Order, because people do change their mind........Especially women! (allegedly!)

Divorce - Assets

ARGUING OVER THE GOODS

Generally people fall into 3 groups:

1. THE GOOD
He/she can have everything.

These people have either moved on emotionally or they simply don't care about the T.V, often they are not even in the position to replace what they leave behind. There are lots of storage companies up and down the country making money out of storing their personal possessions, which their ex spouse's have off-loaded in exasperation. Lots of friends and families' lofts perform the same function.

2. THE BAD
Everything must be divided equally, including the china and the matching sofas, neither party ends up with a complete set of anything and old photograph albums can cause a huge source of debate.

These people are either driven by an innate sense of fairness (their own), are mean, or have no money to replace what they need.

3. THE DOWNRIGHT UGLY
Everything can burn before he/she can have anything.

These people have either not moved on emotionally or are basically nasty. If you do manage to get your graduation photo back it will be cut up into tiny pieces, the last page will be missing from all those novels you intended to read one day and a dead fish will be inserted in the glove compartment of your car.

If your marriage is rocky, or you are having an affair which your spouse has yet to find out about, it is worth keeping hold of your passport, driving licence and all credit cards.

Do you need a Pre-Nuptial Agreement?

WHAT IS A PRE-MARITAL AGREEMENT?
A Pre-Marital Agreement is an agreement between two people contemplated and completed prior to their marriage which specifies the division of their assets in the event of divorce.

IS IT WORTH THE PAPER IT'S WRITTEN?
Perhaps!

Judges are starting to take them into account but are not bound by them.

There are certain guidelines which will go a long way to ensuring your Prenup has standing:

1. Don't bully your partner into signing!

2. Draw the agreement up as soon as possible.
How soon?
At least 3 weeks but preferably 3 months before the wedding.

3. Both parties MUST HAVE independent legal advice.

4. Reveal everything (about your finances).
Without full financial disclosure it really is worthless because the other party does not know what they are agreeing to. Obvious? Should you be contemplating marriage if you want to keep your financial affairs secret? Do you think she might only be marrying you for your money? Are you good looking, kind, dynamic, thoughtful, romantic, understanding, intelligent, generous, good fun? No, at least one of the above? If not your suspicions could be right.

5. Is it fair?
Come on, that needs no further explanation.

How sound your prenup is also depends on how long your marriage lasts and whether you have any children . Although you could take that into account a la certain celebrity marriages, ie the amount of money she gets increases with each year of marriage. That puts a new spin on the old "we're only staying together because of the dog" approach and is a useful form of pension saving for the wife.

The arrival of children, if not contemplated and provided for in the prenup will seriously undermine an agreement. Sensible and fair.

Anybody considering marriage in England and Wales, and in the lucky position of having more assets than their intended spouse should seriously consider a prenup.

Children and Parental Separation

The first concern of the Courts when couples divorce is the children. Unfortunately not all parents adopt this attitude. The end of their parent's relationship creates a very difficult period for children. Worse, children often blame themselves when their parents separate and divorce. A useful website to help children deal with and understand what is happening to them is http://www.itsnotyourfault.co.uk

Who the children live with is the first consideration when parents separate. Joint Residence Orders are becoming more common. It is not necessary to apportion the child's time equally between both parents for a Joint Residence Order to be made. In the past Joint Residence Orders were only made where there was a high degree of co-operation between the parents, and consequently were rare, as typically such parents have no need to ask the Courts to settle their differences.

On a practical level it is difficult for children to live out of a suitcase. The best model is for the child to have one home and for the parents to move in and out on a weekly basis. Most people react in horror to this idea but it is a useful illustration of what upheaval children are expected to go through. I remember my own daughter, when she was only six, used to spend every Wednesday night with her father and every other Friday, Saturday and Sunday night. She was constantly forgetting her P.E. kit. In the end her form teacher used to take my daughter's kit home and wash it every Friday as she said she could not bear to see her crying one more time. Do not forget that children need extra help organising their day to day lives when their parents separate.