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A Guide to what to consider before Separating

 
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This very informative guide has been written by Little Mr Mike

So, your relationship is in difficulties.  You are concerned that things are heading for a breakdown.    Are there any steps you can take now that could avoid difficulties at a later stage ?

The purpose of this article is to try and outline some practical steps you can take to protect your position. Some of them may need the help of a solicitor, others may not.  In addition this article seeks to highlight things that you will have to do sooner or later and you might as well do them sooner. In addition the article will seek to outline your key legal rights, so you do not compromise your position unnecessarily.

PRE-DIVORCE

Advice on what to do in the early stages before things get serious

So, your relationship is in difficulties.  You are concerned that things are heading for a breakdown.    Are there any steps you can take now that could avoid difficulties at a later stage ?

The purpose of this article is to try and outline some practical steps you can take to protect your position. Some of them may need the help of a solicitor, others may not.  In addition this article seeks to highlight things that you will have to do sooner or later and you might as well do them sooner. In addition the article will seek to outline your key legal rights, so you do not compromise your position unnecessarily.

Before we start

The title of this article is ‘ Pre-Divorce ‘.  But quite a lot might depend on whether you are married or not.

First of all, what follows applies to people in a civil partnership as much as it applies to those who are married.

However, it may make quite a lot of difference with unmarried couples. Where this applies, the article attempts to draw specific attention to this.

Housing issues

Owner occupied property

There are two possible situations which we need to consider.

The property may be in the sole name of one spouse ;  or

The property is owned by the spouses jointly.

First of all, let us consider the property which is owned by one spouse. In that event the non-owning spouse has certain rights which derive from section 30 of the Family Law Act 1996.

These rights are :

If the non-owning spouse is in occupation, a right not to be evicted without the leave of the Court.

If not in occupation, a right to return, with the leave of the Court

So in practice this means that one spouse can’t  ‘ order the other out ‘  and the non –owning spouse doesn’t have to go merely because the other says so.

In this situation there is one very practical step the non-owning spouse can and should take if there is a hint of trouble. That is, to register matrimonial home rights against the title. The purpose of this is to prevent the owning spouse selling or mortgaging the property without the other knowing.

To register matrimonial home rights is neither difficult nor expensive,  If you want to do it yourself you will need Form HR1 which you can get at the Land Registry website.

However, registering matrimonial rights is not the end of the story.   There is one nasty little trap of which you need to be aware.

Matrimonial rights depend on the fact of marriage and are therefore ended by divorce ( ie decree absolute ). So if you have the benefit of matrimonial home rights   ( even if registered ) :

Do not be in too much of a hurry to apply for decree absolute ; and

Be aware that there are ways available in which the non-owning spouse’s interests can be extended under section 33 of the Family Law Act 1996. This will require legal advice.

Where the property is jointly owned none of the above is necessary ; as a joint owner any sale or mortgage would require your signature, so you can prevent it merely by refusing to sign.

Severing joint tenancies

Where property is jointly owned, the joint owners may be ‘ joint tenants ‘ or ‘ tenants in common ‘.  The chances are that, if you are married, it will be the former.

With a joint tenancy, if one joint owner dies,  the survivor becomes the sole owner automatically, by operation of law, and independently of the provisions in a will.

Tenancies in common are more often used for business partnerships.  Each joint owner ( assuming there are two ) owns one half share which can be disposed of by will.

Solicitors sometimes advise joint owners who are joint tenants to convert it into a tenancy in common by a process known technically as severance.  The reason it is done is to cover the risk that one party may die and the other inherits the lot. ( Of course it can work the other way too ! ).

In most cases it makes little difference to the financial settlement if the parties are joint tenants or tenants in common ,in view of the Court’s wide power to redistribute between spouses. Of course it can matter quite a lot if one spouse is terminally ill ! – but in most cases it is really up to you to decide whether the potential benefits justify the expense. Not that the expense should be considerable – it’s a pretty straightforward process.

Unmarried partners

Where the couple are not married or in a civil partnership, the wide powers of redistribution available to a divorce court are not available, and the matter will be determined by general principles of property law.

It’s actually pretty important that a couple buying property with a view to joint occupation should take legal advice before buying and preferably take advice on their own account. Doing it at this stage can avoid considerable problems at a later stage if the relationship breaks down. Of course this is decidedly unromantic ; but that’s the way it is.

This is beyond the scope of an introductory article and it is recommended that both parties take separate legal advice.

Occupation orders and domestic abuse

Where this is an issue, the Court has a whole range of remedies at its disposal, including the so-called ‘ occupation order ‘ which,  in spite of its name, can exclude a spouse from the house or part of it ; and a ‘ non-molestation order ‘ which is more or less what the title suggests it is.

All of these are matters calling for specialist legal advice and are beyond the scope of an article of this nature. There is little more that can be said here, apart from notice that such remedies do exist and can be used to exclude an abusive spouse/partner or prohibit certain acts of harassment.

Note also that these remedies are not restricted to married people or even civil partners ; they can cover a wide range of relationships.

Rented Property

Rented property is still property and the Courts can, in certain circumstances, transfer a tenancy from one spouse to the other, or convert a joint tenancy to a sole tenancy.

However, rented property covers a wide range of possibilities.  Some tenancies, particularly those in the public sector, carry with them a high degree of security not much short of a freehold.

On the other hand, there are what is called ‘ excluded licences ‘ where the occupier ( who may not even be a tenant ) has virtually no security and a transfer would be pointless as the landlord could evict the occupiers relatively easily.

If rented property is held under a joint tenancy, and as a result of divorce, one spouse is excluded, it is important that the tenancy be formally transferred into the sole name of the occupying spouse ; if this is not done, the other could remain liable for the rent..

Wills and succession

A will only takes effect on the death of the person who makes it ; before then it is of no value whatever.

In general a provision in a will in favour of a former spouse will be automatically revoked by divorce,  In the same way, a divorced spouse is no longer a spouse and therefore cannot, in general, benefit under an intestacy.

So in practice it is a good idea to ask the question as to what would happen  if  ( Heaven forfend ) you were to die today.  There is a risk ( admittedly a small one ) that if you went under a bus, the spouse whom you are divorcing might inherit under your will or intestacy.

For reasons like this,  you might think it worth your while not to wait for the divorce to become final, but to make a new will now.

There is a possibility ( especially if there is a significant financial inbalance between the spouses )  that the weaker party could make a claim on the other’s estate even after divorce, under the Inheritance ( Family Provision ) Acts.  If this applies to you,  then tell your solicitor, as there are certain practical steps that can be taken to minimise the risk.

Jointly held property

The most obvious example is a joint account or credit card. For obvious reasons, if the parties are getting divorced, there are severely practical reasons for wanting to close it down and agree how the balance standing to the credit of the account is to be divided ( or how the balance on an overdraft / credit card is to be allocated ).

There are risks for both parties that the other will drain the account or, worse still, run up an overdraft or go on a spending spree  for which the other could be wholly or partly responsible.

If the parties cannot agree between themselves to close the account then it will be necessary to contact the bank or credit card provider. Some of them have procedures to deal with such requests and the answer may be to freeze the account or close it to future purchases.  Some banks will require the signature of both parties to close an account.

In any event,  freezing an account can have other practical implications. You won’t want your wages or other credits paid into a frozen account.  You may need to make other arrangements for bills paid by direct debit or standing order.  It’s important to make sure that neither of you is left without money.

Secure your computer

It is a good idea to review passwords to prevent your ex getting his/her hands on sensitive information. But in any event, the  value of evidence obtained by hacking into your spouse’s laptop is very doubtful.

Benefits

It can easily happen that either party to a divorce ( or perhaps even both ) will need to rely on benefits after separation.

For benefit purposes, it is normal that a married or cohabiting couple have their incomes lumped together for the purpose of calculating benefits.  Therefore, when a couple separate, the benefits have to be reviewed for this reason alone.

It’s important to remember that most ( if not all ) benefits  cannot be backdated in the absence of special circumstances.

It is certainly possible to pay a visit to a CAB and ask for a ‘ what if ‘ benefits check to find out what you might be entitled to after separation.

SHOULD YOU LEAVE BEFORE YOU HAVE TO ?

At the end of the day, where a couple get divorced, one or other of the spouses will have to leave the former marital home – sometimes even both.

A question which is sometimes raised is whether a spouse should stay in the marital home till the bitter end, or simply leave of his or her own volition.

In the writer’s view, there are no one-size-fits-all answers to questions like this.  There are occasions where the answer is fairly clear, as it would be, for example, if one spouse was moving in with a new partner.

But there can be instances where leaving prematurely can be prejudicial.  One of the main objectives of a Court is to make sure both parties have homes.  If one party then leaves and finds other accommodation then the party who leaves has solved the Court’s problem for them,  and all the Court then has to think about is the housing need of the spouse who stays in the FMH.  In some cases this can work to the advantage of the spouse who stays put.

Of course, there are inevitably going to be cases where the situation is so fraught that leaving is the only realistic option.  Legal advice is always appropriate.

The dreaded Form E

Filling in a Form E can be something of an ordeal. However, there is no getting around it – sooner or later it will have to be done.

Some of the information required by a Form E may well take time to assemble. Pension CETV’s and mortgage statements are an example.  At this stage, you are not working against a time limit ; but sooner or later, you will be,  so you should be thinking of trying to get the information in advance.

The chances are that there will come a time when both you and your ex to be will need to put together a statement of how much income you need to live on, and what your expenses and outgoings are likely to be.

For the family home, of course, since you probably already live there, you will have a reasonable idea of how much the home costs to run – making allowances, of course, for the fact that one or other of the spouses will not be living there any more.

If you will have to move, your existing costs are at least a reasonable guide.

There is something to be said for getting things like pension CETV,s, surrender values of insurance policies, valuation of investments, sooner rather than later.

There is a useful article in the Wikivorce Library on how to fill in a Form E.

A word of warning

By a coincidence, this was written on Valentine’s Day. If you intend to marry , be aware that this may well prejudice any financial claims and it is most important that legal advice is sought.

Personal possessions

Most solicitors will tell you that, as a general principle, it is better to agree how possessions are divided rather than have a fight in Court about it.

If you are still on speaking terms with your partner, it’s a good idea, if possible,  to make a list of possessions and who gets what.  It would normally be expected that possessions of a purely personal nature will be retained by the spouse who already has them.    There is a danger that you can spend more arguing about furniture than it’s worth.

When to seek legal advice

Ø If you suspect that your ex is planning to conceal assets or dispose of them without your consent.

Ø If an owner occupied home is in the name of one spouse alone.

Ø If you intend to marry or form a new relationship.

Ø If the family home is occupied by an unmarried couple.

Ø If for any reason you want your partner to leave, or desist from conduct amounting to harassment or molestation.

Ø If you want to review your will or make a new one, especially if your spouse is financially dependent on you.

Ø If you want to sever a joint tenancy.

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Rights to Visit the Child if one leave the jointly
Those are very useful information i would definitely take note of it. But one thing, If i sign and to terminate my contract on the morgage as i plan to and my spouse is happy to continue the morgage by herself and own it. What about my rights to visit my son on occasional bases?
G
Good but qualified
Many thanks for putting this together.

You don't say what qualifications you have so I'm unclear if this is legal opinion or bitter experience.

However I think i'll take your advice on seek legal advice "or desist from conduct amounting to harassment or molestation".

Happy days.
G
Thank you LMM!
(Updated: November 11, 2012)
A huge thank you to the wonderful Little Mr Mike for writting this much needed guide.
G