Raleys Solicitors

Question:  I am considering divorcing my husband but feel intimidated by the procedure involved and how financial issues will be sorted out.

Raleys Solicitors’ Reply:  It is understandable that when contemplating a separation there are fears and concerns about what the process will involve, not to mention the emotional strain and upheaval that a person can face.   However, the actual divorce itself is usually straightforward and can often depend on the solicitor who is acting.  When seeking legal advice the best option is to chose a solicitor who is a member of Resolution.  This will ensure that they will be committed to dealing with the case in a constructive and non-confrontational way.  This ethos is adopted to ensure that an individual’s dignity is preserved and to encourage agreement.   In most cases, this will help to ensure the process proceeds as quickly and smoothly as possible.

Raleys Solicitors’ Guide to Divorce Proceedings

The starting point is to realise there is only one ground for a divorce which is the irretrievable breakdown of marriage.  This ground has to be supported by one of five facts which are adultery, unreasonable behaviour, desertion after 2 years, 2 years separation with consent and 5 years separation.  It follows that if an individual needs a divorce straightaway they will have to rely on adultery or unreasonable behaviour.  Therefore, your solicitor will need your original marriage certificate and details of the circumstances surrounding the breakdown of your marriage so that they can prepare your petition based upon the chosen fact.

There is an extra form to complete if the couple have children.  The law requires that divorcing couples try to agree the arrangements for their children before starting the divorce.  Therefore, the individual proceeding with a divorce will submit a Statement of Arrangements for Children form setting out their proposals.  This will be sent to the other party who will be invited to confirm their agreement with the proposals by signing and returning the form within 2 weeks.  It is important to remember that this document is not a contract but simply a reflection of the arrangements for the children at that point in time. Furthermore, this document does not necessarily have to be agreed and the divorce can proceed even in the absence of an agreement.

When the Statement of Arrangements form has been returned, or after the 2 week period has run out, the divorce petition and supporting documents are sent to the Court.  They will then send a copy to the other party together with a form known as the Acknowledgment of Service.  The other party then has 2 weeks in which to complete and return this form saying how they intend to respond to the petition. Once your solicitor has received the Acknowledgment of Service from the Court, it is then possible to apply for a date for the divorce.  This is known as the decree nisi.  The decree nisi is the Court’s way of saying that the person issuing the proceedings is entitled to a divorce in principle but they then have to wait 6 weeks before they can apply for the decree absolute making the divorce final and binding.  Provided the other party does not contest the divorce it will then take approximately 4 to 6 months to obtain the decree absolute.  Provided both parties agree about everything including the costs there will be no need for anyone to attend Court.

Financial Issues

The best way of sorting out the financial aspect of the divorce is for both parties to provide full details of their financial circumstances, supported by documentary evidence, and to come to an agreement concerning financial matters.  This agreement can then be confirmed by a Court Order known as a Consent Order making it final and binding.  The procedure for obtaining such an order is very simple.  It is simply a matter of sending some agreed paperwork to the Court which then makes the order without anyone having to attend.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

If you have a question on family law, email us on family@raleys.co.uk.

Question: After many years of unhappiness, my husband and I have decided to divorce. I remain in our home whilst he has moved out. However, I am worried about my right to stay as I am not named on the Deeds. The house has been a family home since we bought it over 30 years ago and I cannot imagine living elsewhere. If we divorce, will I have to leave?

Raleys Solicitors’ Reply: Worries about remaining in a long held family home are often at the forefront of peoples minds in your position. Unfortunately, without knowing more about your particular financial circumstances it is difficult to give reassurance as to whether you could stay in the property in the long term. However, in the short term, just because your name does not appear on the Deeds does not mean that your husband has the right to force you to leave. The law recognises that situations such as yours often arise and that protection should be afforded to the spouse not named on the Deeds. As a result, the law protects you by recognising your ‘matrimonial home rights’. These rights mean that, by virtue of your marriage to your husband, you have gained a right to occupy the property. They also mean that you have a right not to be evicted or excluded from the house, or any part of it, by your husband without him first seeking the permission of the Court. These rights only cease on either your husband’s death or the end of your marriage, although the Court does have the power to extent your rights even beyond these two events.

As you have taken the decision to separate, I would recommend that you seek the advice of a specialist Family Solicitor as they will advise you about registering your matrimonial home rights. This is important as, at the moment, your husband could decide to sell or re-mortgage your home without your knowledge and consent. A good Family Lawyer will seek to prevent this from happening by taking steps to register your rights at the Land Registry straight away.

In addition to your right to occupy the property, it is also highly likely that you will have gained what is known as a beneficial interest in it. This means that although your name is not on the legal title, you will have a financial interest in the property. As stated above it is difficult, without having details of all the assets of your marriage, to reassure you that you would be able to remain in the property after the divorce. However, if this is your wish then your Solicitor should give proper consideration to whether it is feasible in all the circumstances. An important part of advising you in relation to the divorce will be the advice you receive on how to separate from your husband financially. Your Solicitor will need to review all the assets and liabilities of the marriage before giving you detailed advice particular to your circumstances. However, generally speaking, the starting point for the division of all the assets of the marriage would be 50/50. If it was possible for the family home to be transferred to you, and your husband compensated by receiving another property or savings etc, then there should be no reason for you to have to move.

Hopefully the above advice will have provided you with some reassurance as to your right to remain in your home at least in the short term. It is now important that you seek the advice of a specialist Family Solicitor on your long term position and we wish you all the best with this.

If you have a family law question ask Raleys Solicitors by e-mailing family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: After several years of violence and verbal abuse I have finally summed up the courage to separate from my husband. He seems willing to leave as he has admitted to seeing someone else but I am unsure of my rights if he suddenly refuses. He has been very violent towards me and, unfortunately, our son has witnessed this.

Raleys Solicitors say: It must have been a great relief when you finally gained the courage you needed. I can understand your concern for the future but please be assured that there are ways to protect yourself, and your son.

If your husband is violent again your first port of call should always be the Police. They are specifically trained to handle situations of domestic violence and can caution or arrest the perpetrator. They could also use a Restraining Order to prevent your husband coming within a certain distance of you.

In addition to the Police, it would be wise to seek the advice of a specialist Family solicitor. A solicitor has several remedies to call upon in a situation such as yours. If your husband leaves your home but continues to harass you, an application can be made to the Court for a Non-molestation Order. Such an order can prohibit the violent person from ‘molesting’ the person applying for the order. ‘Molestation’ would include harassment and pestering but must be sufficient to warrant the intervention of the Court. From the information you give, your legal advisor should have no difficulty in securing such an order.

A Non-molestation order can also have a power of arrest attached to it. In this case, if your husband breached the terms of the order, a Police Officer would have automatic power to arrest him without a warrant. This can often prove to be an effective deterrent in itself but if your husband were to breach the order the Police would act and he would be arrested.

I note that you are also concerned to know your rights should your husband refuse to leave at the last moment. If this happens your legal advisor would have the option of applying for an Occupation Order. Such an order would require your husband to leave your home and, in some circumstances, stay away from the area where your home is situated. In accordance with legislation, the Court must make an Occupation Order if it appears that the person applying for it, or any relevant child, is likely to suffer significant harm as a result of the violent partner’s conduct. In these circumstances, the Court must be satisfied that the harm to the person applying for the order would be greater, or at least equal, to that suffered by the person who will be ordered to leave the home if the Order were made. Again, from the information you give it seems that you would have a compelling case for achieving such an Order. Both Occupation and Non-molestation Orders can be applied for on an ex parte basis, which basically means without notice. This means that your legal advisor could apply to the Court without having to give notice to your husband.

Finally, I am sure that you will be concerned about whether your husband will want to have contact with your son when he finally leaves the home. The Courts take the issue of domestic violence extremely seriously, especially where children are involved. You do not say whether your husband has ever been violent with your son but I note that he has witnessed the violence towards you. If you are concerned for your son’s safety then your only option may be to deny contact. In these circumstances, your husband could make an application to the Court to have the contact reinstated. You would then have the opportunity to tell the Court about the violence towards you and explain the concerns you have for your son. The Court would have to take various steps to thoroughly investigate your allegations and concerns before deciding how, and indeed whether, contact should take place.

If you have a family law question, e-mail Raleys Solicitors: family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: I am a married father of three young children. My wife and I separated two weeks ago when I left the matrimonial home after a domestic argument. My wife has been to see a solicitor and has alleged that I had been violent towards her. I have been told that due to these allegations it may affect me having contact with my children, is this true?

Raleys Solicitors’ reply : The issue of domestic violence is taken very seriously by the court, in particular in this contents when children are involved.

In May 2008 a practice direction was issued on this very subject which has, to some extent changed the procedure within the courts to ensure that where an allegation of domestic violence is made the courts consider it in full when trying to determine whether contact should take place between a child and the perpetrator of the violence.

In this case, as always, it is best to try and reach an agreement amicably. However, if your wife is denying you contact with the children then you need to make an application to the courts for a defined contact order. You are entitled to do this as the children’s father and such an application would be made in your local county court. However, you should be aware that upon applying for your contact order it may well be that your wife raises the issue that you have been violent towards her. Due to the recent practice direction, the District Judge is obliged to identify at the earliest opportunity the factual and welfare issues involved with this allegation. Therefore, it is likely that a finding of fact hearing will be ordered which will mean that both you and your wife will have to file written statements of the alleged violence involved. A hearing will then take place which will mean that you will both have to give evidence so that the Judge can determine whether or not there is any truth in your wife’s allegations. Clearly if the Judge decides that there has been no violence then contact can take place between you and the children and it is crucial that a child remains in contact with their absent parent. However, if the Judge does decide that you have been violent towards your wife then this may well directly impact upon your contact with the children. The key issue is whether or not the violence that has occurred had any effect on the children. For example, if the violence formed part of a one off incident which was not witnessed by the children then it is less likely to have an impact on contact. However, if there was a series of violent incidents and this was witnessed by the children then it is far more likely to have an impact. However, it does not mean that the perpetrator of the violence will be denied contact with their children. For example, it may well be that the court will want the perpetrator to seek advice or treatment as to their anger management issues. This may well be a precondition before contact can take place. If an individual can show that they have the capacity for change and will behave appropriately, contact may take place in the future. The key issue is whether or not the court is satisfied that the physical and emotional safety of the child can be secured. If so then beneficial and meaningful contact can take place in the future.

In some cases it may well be that direct contact is not in the children’s best interests. In cases such as this indirect contact may be ordered. Indirect contact would include letters, emails and perhaps even telephone calls. This may be a way to build up to direct contact overtime. However, it would be for the perpetrator of the violence to work very hard to show that the trust can be rebuilt in the future and past mistakes can be addressed so that contact can be about the children in the future and not used as a means to address past difficulties between the parties.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: My ex-husband and I have two boys together. When we initially separated we had a big battle through the Court in relation to him seeing them. In the end, I was given custody and he was allowed regular contact which is still continuing. I now want to emigrate with the children and my new husband to his native America, am I within my rights to do this even if my ex objects?

Raleys Solicitors’ Reply: No, I am afraid that you are not automatically entitled to move the children abroad. The Children Act 1989 confirms that where a residence order is in force with respect to a child then no person may remove that child from the United Kingdom without either the written consent of every person with parental responsibility for that child or, the leave of the court. You say that you were given ‘custody’ of the children which is the old word for residence and, as you were married to your ex he will have parental responsibility for the boys. As a result, if he objects to you taking the children to live abroad, as seems likely from what you say, your only option will be to make an application to the court for permission to take them to America.

On a more positive note, the current view of the court is that permission should not be withheld, unless there is a compelling reason to do so, where the decision of the person to emigrate is reasonable. Courts are mindful that if a reasonable application is denied this may cause bitterness on the part of the family who have been refused and that this, in turn, may negatively impact on the children concerned.

When deciding your case, the court must have regard to the welfare of the children. Indeed, this will be of paramount concern. They will need to know about every aspect of your proposed move such as why you want to move, where you plan to live and with whom. They will also want a clear picture as to where the children will continue their education.

Whilst there is no presumption in favour of you because you have a residence order, your reasonable proposals will carry great weight. However, the court will be very concerned as to the effect on your two boys resulting from the reduction of contact with your ex. They will not tolerate an application from someone who they perceive is simply trying to frustrate or prevent contact by moving away. For this reason they will want to check that your reasons for moving are genuine and they will expect proposals as to how the boy’s contact can continue with your ex. Clearly, as you propose to move so far away, face to face contact of the kind that is taking place now will be significantly restricted. You therefore need to ensure that you make sensible and realistic proposals as to how the boys can sustain the relationship with their father. This could be via a combination of e-mail, webcam and telephone contact. It will also be important to recognise that your ex will perhaps wish to travel to you to see the boys or organise for them to travel back to the UK to him, if appropriate.

Any reputable specialist Family Solicitor should be able to advise you fully on the particular circumstances of your case and guide you through any application to the Court, if it becomes necessary. Whatever happens may we wish you all the best for the future.

If you have a family law question, ask Raleys Solicitors by e-mailing family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: I am 55 years of age and a widow.  Over the years I have managed to accumulate substantial assets.  I have in recent years met a man and, after two years, he has proposed to me.  I am worried as to how this will affect me financially should I accept the proposal and what would happen if the marriage breaks down.  In reality, I am concerned about how best to protect my assets.

Raleys Solicitors’ Reply:  The starting point is to understand the implications of marrying your partner.  A marriage is a legally binding contract entered into by the parties who wish to commit themselves to a future together.  Therefore it follows that, as a consequence of that marriage, the parties’ financial affairs are, in effect,  merged.  If the marriage subsequently breaks down and divorce proceedings follow then the court may have to re-distribute the assets of the marriage taking various factors into account.  This may mean that the court decides the assets should be shared regardless of who owned them in the first place.  Therefore the best way to protect assets is to enter into a pre-nuptial agreement.  However, before doing so, it is crucial to understand the position of the court in relation to such contracts.

Historically the position has been that pre-nuptial agreements are contrary to public policy.  This was first decided nearly 80 years ago in the case of Hyman v Hyman (1929) AC 601.  In this case it was felt that such agreements undermine the institution of marriage because they contemplate divorce and, as a matter of policy, the parties cannot decide the law does not apply to them.  This argument seems to have remained valid over the years and it is only recently that the courts have started to recognise the value of pre-nuptial agreements.  Therefore it may well be the best course of action available to this individual.

The important thing is to make sure that enough is done to give the pre-nuptial agreement evidential value.  Unfortunately, a practitioner would not be able to guarantee that the court would take the pre-nuptial agreement into account, but it could certainly be seen as a persuasive factor if all the requirements are met.  These are as follows:

1. Each party must take independent legal advice.  The court will be careful to ensure that each party has entered into the contract fully understanding its terms and implications.  What is particularly important is that neither individual felt forced by the other party to enter into the agreement.

1. It is also crucial that each party exchanges full financial disclosure.  This includes full details of their financial circumstances at the time the contract is entered into, supported by documentary evidence.  The details of such financial circumstances should be attached to the agreement itself.  Again this will help to show that the parties have entered into the agreement will full knowledge of all the facts and by understanding the other party’s financial position.  This  may later help to demonstrate to the court that the agreement should be upheld.

1. The agreed terms will need to be recorded in a well drafted deed.  It would also be wise for the parties to ensure that each clause is  separately enforceable so that if, at a later stage, some of the clauses are held invalid, the other clauses will remain.  This is because some clauses may be irrelevant at a later stage if there is a significant change of circumstances.

As already stated it may well be that the court will not recognise and enforce the pre-nuptial agreement reached.  However, provided that the above terms are satisfied and the parties enter into the agreement sufficiently before the marriage, then the pre-nuptial agreement may well have enough evidential value to persuade the court that it should be upheld.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice.  Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: I have recently split up from my girlfriend. We have two little girls and I want to make sure I see them regularly but my ex doesn’t want me to. What are my options?

Raleys Solicitors’ Reply: This is regrettably a common problem but often it can be resolved without the need for court action. The key is, following the separation, to let the dust settle and then approach the problem in a calm and rational manner. It is often the case that, when a couple first separate, they allow their anger to become more important than what is best for the children. Therefore, it is important to remember that things can get easier as time goes by.
The crucial thing to remember is that, apart from in the most exceptional of circumstances, it is imperative that the children maintain contact with both sides of the family. It is for this reason that the courts often view a father’s application to see their children very sympathetically.

The first step is to try and speak to your partner and put forward some reasonable proposals as to when you would like to see the children. Whilst it is important that both parties remain flexible, it is better to have a fixed time for contact each week. This will ensure the children have a routine and allow both you and your ex girlfriend to plan your personal time around the arrangements. If your ex girlfriend will not speak to you then consider consulting a solicitor who will write to her on your behalf setting out your proposals and suggesting that she seek independent legal advice. Hopefully this will lead to an agreement which works for you both. A solicitor may also suggest that you and your ex girlfriend attend mediation together. This would allow you both to meet with a mediator who would help you to iron out any communication problems and reach a mutually acceptable agreement. This process can often be quicker and cheaper than going to court.

If you and your partner can not agree the contact arrangements then, as a father, you have the right to apply to the court for a contact order. The order, if appropriate, will set out clearly when you should have contact and can, if necessary, detail who is to collect and return the children.

You also need to be aware of a concept known as parental responsibility.  This is a legal expression used to outline the rights, duties and responsibilities which a parent has in relation to his or her children.  Your ex girlfriend has parental responsibility automatically by virtue of giving birth to the children.  A married father also has parental responsibility but an unmarried father such as yourself may not have parental responsibility automatically, unless your children were born after 1 December 2003 and you were named on their birth certificate. If you do not have parental responsibility, you can acquire it either by entering into a written parental responsibility agreement with your ex girlfriend or by court order.

If you have or acquire parental responsibility in respect of your children then your ex girlfriend would have to consult you regarding all the major issues in the children’s life.  Such matters would include religious upbringing, medical treatment and education.  In addition it would prohibit her from changing the children’s surname or removing them permanently from this country without your knowledge or consent.  Furthermore you would have the same status as her in relation to attending school open evenings and obtaining school reports etc. Basically your status as the children’s father would be formally recognised by you having or acquiring parental responsibility.  However, you would not be able to exercise this so as to interfere with the daily care administered by your ex girlfriend to the children.

If you have a query about family law, email Raleys Solicitors on family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: My husband and I have been together for 30 years but have recently encountered problems. As a result we have decided to separate, however, we still remain friends. Although we may divorce in the future, at present, we simply want to sort out our finances in the most amicable way possible. Can you suggest how to do this?

Raleys Solicitors’ reply: Sandra, I am sorry to hear you and your husband have separated after such a long marriage. Please be assured that there are alternatives to divorce which enable you to sort out your finances; the key is to find the one that is right for you and your husband. You may be one of the lucky people who are able to reach an agreement between yourselves because you have remained on good terms with your husband. However, even in these circumstances, it would be sensible to seek legal advice before embarking on any discussions so as to ensure that you understand fully the implications of any agreement you arrive at.

If you feel able to discuss the finances with your husband, but need a little support, mediation could be the way forward. Mediators are trained to help people resolve disputes. They are neutral and will not take sides. Instead, they will listen to you both and give you guidance.

If you do reach an agreement without solicitors, it is very important that you obtain advice from a lawyer on how to formally record the agreement. A specialist family lawyer will advise about one option which would be to enter into a Separation Deed. This would take the form of a contract between you and your husband and you would both agree to be bound by the terms of it. If one of you failed to adhere to any term in the contract it would be for the other to enforce the agreement by making an application to the County Court for breach of contract. There are pros and cons to having such a Deed. The disadvantage is that it does not constitute a final and binding court order, of the kind you would achieve if you were to proceed with your divorce now. However, if you have both had the benefit of legal advice at the time when the Deed was entered into and you have both exchanged full details of your financial circumstances, then the agreement could form the basis of a final and binding order if you were to subsequently divorce. A further disadvantage of a Separation Deed is that, if the agreement did not reflect a fair settlement of the financial issues, or there is a material change in your circumstances, the agreement could be revised in any later divorce proceedings. However, any Separation Deed you had would be introduced as evidence to support the agreement you held at one stage. Overall, although there are disadvantages, Separation Deeds can work. Your legal adviser should be able to tell you whether having one is right for you.

Another option for couples that do not want to divorce, but want to be able to sort out their finances and record the agreement, this time in a final and binding court order, is Judicial Separation. Most commonly, judicial separation is used during the first year of marriage when divorce is not permitted, or in cases where people have religious objections to divorce. Judicial separation can be a good halfway house as it means that the separating couple can take advantage of the court’s powers to sort out their finances. The only disadvantage is that it does not enable the parties to remarry, although this is often of no consequence to people who choose Judicial Separation.

As you can see, sorting out the finances after separation can be a difficult process and that is why we would always recommend you seek independent legal advice. However, whichever method you choose, may we wish you all the best.

If you have a family law question, ask Raleys Solicitors at family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Isabel says: Myself and my husband have lived together for six years in total but only married five months ago. I thought marriage may save our struggling relationship but Christmas was terrible and I now want a divorce. My husband is a high earner but has moved out and is no longer supporting me and our two children. I am really struggling financially.

Raleys Solicitors: Isabel, unfortunately, you are not alone in the conclusion that your marriage has broken down following the Christmas period. Sadly, it seems to be a catalyst for many clients. Although you seem very sure that you wish to begin divorce proceedings, I wonder if you and your husband have considered attending Relate or seeing a marriage guidance counsellor.

If you are sure that divorce is the only way then, unfortunately, you cannot seek a divorce within the first year of your marriage. However, if you feel that your marriage has broken down irretrievably then I would recommend that you seek the advice of a specialist family solicitor as soon as you can. They will be able to advise on the procedure for divorce and they can also take some simple steps, such as obtaining your marriage certificate, in readiness to begin the divorce at the first available date.

When you do begin the divorce it will be on the ground that your marriage has broken down irretrievably. However, in order to prove this, the court requires you to cite one of several facts. As you have not been separated for any length of time, the only facts that you can rely on are either your husband’s adultery or his unreasonable behaviour. It seems, from what you say, that unreasonable behaviour may be the appropriate fact in your case. In these circumstances, it will help your solicitor if you can think of around five or six incidents of your husband’s unreasonable behaviour. They will then use those incidents when drafting the divorce petition. A further step that can be taken in preparation for the divorce is completion of the Statement of Arrangements for Children form. This outlines what arrangements you have in place for your children and should be sent to your husband so that he can comment on the form. It will then be sent to the court along with the divorce petition when you reach your 1st wedding anniversary.

You mentioned that you are concerned about surviving without your husband’s salary. As your husband has left the family home he will be liable to pay child maintenance. This can either be agreed between you, or you can make an application to the Child Support Agency or Child Maintenance and Enforcement Commission. As you have two children then, roughly speaking, your husband should pay 20% of his net salary direct to you for the care of your children. I would recommend that you get on and make this application. You do not need a solicitor to assist you with this. In relation to financial support for you, your solicitor may advise you to make an application to the court as part of the divorce to ensure your husband pays maintenance long term. However, such an application can only be made when your divorce petition has been filed with the court. In the meantime, your solicitor should advise you on making an application under section 27 of the Matrimonial Causes Act or under the Domestic Proceedings and Magistrates’ Court Act. Such an application can be made at any time during a marriage, including in the first year. This may be appropriate for you. In addition, you should also urgently consider whether you are eligible for any benefits and you can check this by contacting the Inland Revenue.

Whatever happens in the future, may we wish you all the best.

If you have a family law question, ask Raleys Solicitors by e-mailing family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

In light of the many general questions received by us each week, we have decided to address queries in our new ‘Ask Raleys Solicitors’ section.  Therefore, if any readers have a query about family law they may email us on family@raleys.co.uk.

My wife and I have agreed to separate and are in the process of deciding who should have what.  We are trying to keep things fair and have not involved a solicitor.  We are quite well off; having a large family home, savings and a substantial portfolio of shares.  The current thinking is that my wife will keep the matrimonial home and most of our savings while I will retain all the shares.  The only thing that worries me is the current economic climate and whether my financial future will be secure.  What would happen if the shares drastically dipped?

Raleys Solicitors’ Family Law Specialist Says: I am sorry to hear about your separation.  It is very encouraging that both you and your wife wish to resolve the finances in a fair manner and I hope this attitude endures throughout your case.  Any reputable specialist Family Solicitor should nurture your current level of accord and so it is very important that you both seek advice on an individual basis before committing to any settlement.

A Solicitor will recommend that both you and your wife provide full details of all your assets, supported by documentary evidence.  After receiving these documents they will be able to advise you what would constitute a fair settlement in all the circumstances of your case, or at least give you constructive advice on any agreement you and your wife propose.  This is especially important in light of what you say in your letter about the agreement that you and your wife are considering.  They will also advise you to incorporate any agreement you reach into a Consent Order.  This is an Order of the Court which confirms the agreement you will eventually reach in a final and binding way and serves as protection against any future claims your wife may be able to make.

Turning to your query, I think you are right to be concerned about retaining shares as the bulk of your portion of the matrimonial assets.  As you yourself have identified, particularly in the economic climate of today, shares even in large and very reputable companies can plummet without warning.  If yours were to take a downturn then you could easily find yourself without the financial support you budgeted for and with no recourse in law.  This has been demonstrated by a very recent case in the Court of Appeal.  In those circumstances the husband agreed to keep shares in his company in exchange for the wife receiving a property and a substantial lump sum.  The whole agreement turned on the value of the matrimonial assets, including the shares, at the time of the agreement.  In percentage terms, when the agreement was entered into, the wife was receiving 43% of the couple’s assets.  At that time, the husband’s shares were worth £2.99 each but one year on they had crashed to 27p.  As a result, the husband appealed to the court arguing that he should not have to pay all of the remainder of the lump sum to his wife as the fall in share prices had made the agreement “unfair and unworkable”.  In spite of his argument that sticking to the terms of the agreement would mean that, in reality, his wife would receive 86% of the matrimonial assets to his 14%, his appeal was rejected.

On the basis of the above decision, if you were to agree to your wife retaining the house and the majority of the savings, in exchange for you keeping the shares, you could leave yourself vulnerable and have no right to vary the agreement.  For this reason, I would strongly recommend that you seek legal advice before entering into any agreement with your wife.

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