What is the matrimonial home?
The matrimonial home/family home is often referred to as the home in which the parties and their family lived in. Were people are married it is often referred to as the matrimonial home, where they have been in a cohabiting relationship it is often referred to as the family home. Both parties can have rights over this property irrespective of whose name it is in, irrespective of who has paid the bills. Please note that the rights of a married couple on separation may well be very different to the rights of a cohabiting couple on separation. Again, it is important that legal advice is taken to advise on those rights and that in certain circumstances where the property is in one party’s sole name, that advice is taken to protect the non-owning party’s interest in the property.
How can I work out what my partner should pay to me for our children as child maintenance?
Parents are encouraged to try and resolve amicably the level of child support that is paid by one parent (the parent with whom the children do not live with the majority of the time) to the other. If they can reach an agreement all well and good, that does not need to be ratified in a court order or via the CMS (Child Maintenance Service). Parents can be helped to reached an agreement by using a variety of sources including Child Maintenance Options, a free service providing impartial information and support to help separating parents make decisions about child maintenance arrangements.
Sometimes however parents cannot reach an agreement and an application to the CMS may be necessary. The CMS have a variety of options in dealing with child maintenance including carrying out a formal calculation based on the absent parent’s gross income, collecting the maintenance etc. please note that an application to the Child Maintenance Service is not free, it needs to be paid for by both parents. The CMS does have a variety of options for enforcement of maintenance as well.
Click here to see the CMS website
What is child maintenance?
Child maintenance is where one parent sometimes referred to as the absent parent i.e. the parent with whom the child does not spend the majority of their time with, pays maintenance to the other parent for that child’s support. Please note that what that parent does with the money is up to them, they may save it, they may use it to pay bills, they may use it to pay for a holiday i.e. the paying parent has no control over what the money is used for.
If parents share the care of the child(ren) then it may be that no child maintenance will be paid but in order to work this out you have to count the actual number of nights a child spends with both parents and if it is seven nights out of fourteen, then it is likely to be deemed true shared care. However, if it is only three nights out of seven, then one parent will be deemed to be the parent with care. If you can agree maintenance all well and good, if you cannot agree maintenance then you can make an application to the CMS (Child Maintenance Service) for them to determine child maintenance. Child maintenance is worked out on a formula and is based on your gross income and on a percentage basis according to the number of children you have and the number of nights they stay overnight with you.
I am in a civil partnership, can I get divorced?
Bringing an end to a civil partnership involves slightly different terminology than bringing an end to a marriage. You can apply to dissolve (end) your civil partnership provided you have been in the registered civil partnership for at least one year. The process is fairly similar to divorce in that you send paperwork to the court to ask for permission to end your civil partnership. You do not normally need to attend the court if you are just dealing with the paperwork application for dissolution. The grounds for ending a civil partnership are that the relationship has irretrievably broken down and this is proved in one of four ways:
- Unreasonable behaviour
- Separation for more than two years with consent
- Living apart for more than five years
What is spousal maintenance?
Spousal maintenance is where one party to a marriage pays maintenance (financial support) to the other. Please note that spousal maintenance is only available to parties to a marriage/civil partnership, the court has no power to order former cohabitees to pay spousal maintenance to the other. Spousal maintenance can be paid for a fixed period of time to enable one parent to adjust, to get back into the job market etc., or can be paid long term, possibly on a joint lives basis.
Do grandparents have legal rights?
Grandparents do not have any automatic right to see their grandchildren. Sadly, when a relationship breaks down one or both sets of grandparents can be pushed out and lose contact with their grandchildren. The family courts however do recognise the invaluable role that grandparents can play in their grandchildren’s lives, especially at a time when their grandchildren are going through a difficult time in terms of the parental separation. Therefore, if a grandparent makes an application to the family court, they may stand a good chance of success in obtaining a child arrangements order that the grandchildren should spend time with them.
Grandparents do not have an automatic right to make an application for a child arrangements order, they will have to apply for permission (leave) and if they make an application the court will consider, amongst other things, their connection with the child and whether the application is in the child’s best interest.
Does my husband have to pay maintenance for me as his ex-wife?
This will depend on the circumstances of your case. Generally speaking, the court does like to try and achieve a clean break i.e. a dismissal of both parties’ claims including for maintenance when a marriage breaks down, however this is not always possible. If for example one party has put their career on hold and brought up the children/run the home, whilst the other party has been able to develop their career and is now earning a high salary, then the stay at home party may well be entitled to spousal maintenance. Unlike child maintenance, there is no formula, the main test is does one party need any money and if so does the other party have the resources i.e. disposable income to pay. If they do not have the resources, then, even if one party needs the money maintenance may not be paid. The court has a variety of powers open to them including giving maintenance for a fixed period of time, or possible joint lives orders. The court can also give nominal maintenance orders which mean that there is no absolute clean break and the party, normally the parent with care of young children, has the ability to apply to the court in the future for maintenance should their circumstances change.
Can I get my partner’s pension in a divorce settlement?
Often the answer to this is yes. Pensions are normally included as assets in divorce financial settlements, and they are often the biggest asset in terms of value. It is important that you get a good understanding of your pension entitlement and the impact of any divorce settlement upon your pension benefits. There is no automatic principle of division, it may depend on how long you have been together compared to how long you have been in the pension scheme. It may depend on whether or not one of you has been out of the working environment bringing up a family and therefore not able to contribute to their own pension. The way the matrimonial pot, including pensions, is divided between you and your partner would be decided either by agreement between the two of you or by the courts and would be based on factors such as the financial needs of each party as well as the length of the marriage.
There are a variety of ways that pensions can be death with, a common way is pension sharing whereby pension funds are divided so that both parties have a separate fund in their respective names. Sometimes there is pension offsetting which can involve one party transferring a proportionally larger share of their liquid assets to one party in return for their pension being left alone. Pensions are a highly complex area of law and frequently advice from actuaries must be taken.
What should I bring to my first meeting about a divorce?
You may want to speak to your solicitor in advance about the information they would like you to bring in, it may be that they have a form they require to you complete. Generally speaking, it is a good idea to have evidence of your identity upon you so your solicitor can verify who you are. You may also want to prepare a short summary, often just one page of A4 is sufficient, giving everyone’s full name, date of births, addresses, contact details and a general paragraph on the background to the situation.
You also need to have made enquiries with a solicitor in advance about how they expect to be paid for their services and to make sure that you have the methods of payment with you.
I want my partner to see our children, what can I do?
Generally speaking, it is in the child(ren)’s best interest to have a positive and ongoing relationship with both of their parents in the event of a separation. However, sometimes one parent chooses to walk away from the child(ren) and there is nothing in the law which can make a parent be involved in a child’s life if they do not want to be. There can be many reasons for this including drug and alcohol misuse and domestic abuse. The impact on the remaining parent and the children can be very difficult to deal with. Children in particular can struggle as they may believe they are responsible for one parent’s absence and children who lose a parent in this way can go through a grieving process. In those circumstances, it will be important to offer the children as much reassurance and support as possible and be prepared to deal with regressive behaviour.