Family Law Q&A - x3 answers to x3 common questions
From Enquirer A - Dear Matt
My wife and I were divorced 2 years ago. I have the final order. I have just received a large windfall, but my ex-wife is insistent that she has a share of that. We just sorted the finances out between us when we got divorced, there was no need to see a solicitor. Surely my wife can’t make a claim now!?
Dear Robert
Thank you for your enquiry. This is certainly something I can assist you with.
The making of your Final Order of Divorce does not dismiss the financial claims you and your ex-wife can make against each other. To dismiss those claims, a Financial Remedy Order is required. So, unless your wife has since remarried, she can make a claim against your assets (which include your windfall).
In deciding whether to make a further award to your ex-wife, the Court will first have regard to her reasonable needs and those of any dependent children. If your ex-wife’s needs were met by the agreement you reached 2 years ago, then you may be able to argue that your windfall should be excluded as a “post-separation asset”. That decision will, however, be exclusively the Court’s.
Though the Divorce process can be undertaken without a solicitor, it is always a good idea to ensure that you take legal advice in respect of financial matters to ensure that you are protected against further claims such as this.
Please do feel free to contact me if you have any further questions.
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From Enquirer B - Dear Matt
I have lived with my common law husband for 20 years. We have three children together aged 2,3 and 4. Am I right that my common law husband is required to keep a roof over our heads? Is this something you can help me with please?
Dear Samantha
Thank you for your enquiry, I would be delighted to assist you.
Unfortunately, the notion of a “common law husband” is myth; there is no such thing. You are in fact in a cohabiting relationship. Cohabiting partners in England and Wales do not have a legal duty to support each other financially should the relationship end, nor do they have an automatic right to each other’s pensions or inheritance, unless specified in a will. So, your claims against your partner are limited to claims against property, whether owned jointly or in one person’s sole name.
However, as you have three children together, you could apply to the court for financial provision from your partner, for the children’s benefit. You could ask the court to make orders such as a transfer of the family home into your sole name, or lump sum payments to provide for the children’s capital needs (such as housing).
I hope the above is of assistance. Please do feel free to contact me if you would like any further advice.
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From Enquirer C - Dear Matt
My kids are 4 and 5. Love them to bits and would do anything for them. They are at school all week and are tired at the weekends. Their dad wants to see them at the weekends, which is my time with them. He can see them in the school holidays. No Court will make them go at the weekend, will they?
Dear Jenny
Thank you for your enquiry. It would be my pleasure to assist you.
Unfortunately, the circumstances of your case are not quite as straightforward as you may think. In deciding what the arrangements should be for the children, the court’s paramount concern will be that of the children’s welfare. Further, the court will presume that the children should have a meaningful relationship with both of their parents, unless there are safeguarding concerns that would make it too risky for them to do so.
If you have no concerns about the father’s care of the children, then I do consider that the Court would want them to spend more time with him than just the school holidays. I do not think that a Court would award him every weekend, as that would impact their chance to spend quality time with you. However, an arrangement whereby he sees them, say, every other weekend, would not be unusual.
It would be in the children’s best interests if you and the father could agree the arrangements for them, without the need for Court proceedings. I would be happy to negotiate on your behalf. Alternatively, I could refer you to a mediator who may be able to help you and the children’s father settle on arrangements that are workable and, most importantly, in the best interests of the children.
Please do feel free to contact me if you would like any more advice.
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You shouldn't rely fully on the comments made here as every situation is different and needs full advice based on your own set of circumstances. However, if you're affected by any of these situations and recognise the type of worry that might be affecting you too, then we're here to help. Give me a call on 0116 212 1000.
Matthew Harcourt-Poole, Family Law Associate Solicitor
Lawson West Solicitors, Leicester
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