Your Letters
Ask Lisa-Marie
Lisa-Marie Darby is a Solicitor at Wright Hassall Solicitors LLP in Leamington Spa, one of the leading firms in the West Midlands. Lisa-Marie qualified as a solicitor in 2003 at a firm in Leicester and has been a member of the Wright Hassall Family Law Team since 2007. Lisa-Marie is a member of Resolution and deals with all areas of relationship breakdown including divorce, ancillary relief matters, cohabitation issues and disputes involving children, in which she has a particular interest.
Q. My daughter, Bethany, has said that she wishes to attend a drama group that meets once a fortnight on a Friday after school. Unfortunately, the meetings fall on the weekends when my ex-husband is due to have our daughter for alternate weekends of contact under the terms of a court order made last year. My daughter really wants to attend and I am worried that her father will not agree to collecting her for contact 2 hours later than ordered. Surely there is something that I can do?
A. There is. I suggest that you begin by trying to discuss the issue with your ex-husband, if necessary via mediation, to ascertain whether you can reach an agreement to alter the existing routine. By either offering your ex-husband some extra time for contact at the end of each weekend or by changing the weekends she is with him, so that he does not actually miss out on any time with his daughter, you may well find that he is more likely to be amenable to the change. In the alternative, you could suggest that he takes her to the drama group given how strongly she feels about it. He may be happy to get more involved in the activities that interest her.
If he remains unwilling to agree however, the only other option you have is to make an application to the court for a variation of the existing contact order, giving your reasons for believing this change to the order to be in your daughter’s best interests. Again, it would be sensible for you to consider alternative proposals for contact that you can then put forward to ensure that your daughter’s time with her father is not reduced.
Q. After many years of unhappiness, I am desperate to get a quickie divorce from my wife. My solicitor says that there is no such thing, despite what I have read in the newspapers. Is he right?
Yes, he is. Irrespective of the fact upon which you intend to rely when bringing the marriage to an end – adultery, unreasonable behaviour, two years separation with the consent of the other party, two years desertion or five year’s separation - the procedure effectively takes the same amount of time from divorce petition to decree absolute.
Sometimes, a divorce petition based upon the unreasonable behaviour or adultery of the other party is referred to as a “quickie divorce”, simply because it is not necessary to wait for a period of separation to expire (whether two or five years) before commencing the proceedings. It will however still take approximately 5 or 6 months from start to finish and potentially longer if the proceedings are defended by your spouse or there are complex financial issues to resolve.
Q. My ex wife has a residence order in respect of our daughter, Rachel, with whom I enjoy regular contact. Unfortunately, we have been unable to agree on which secondary school Rachel should attend in September. My ex wife seems to think that because she has a residence order, her view should carry more weight than mine. Is this true?
A. Because you were married to Rachel’s mother, you have parental responsibility for her. This means that you share responsibility with your ex wife for making important decisions on your daughter’s behalf, which includes decisions regarding her education. The exercise of parental responsibility is not dependent on who your daughter is living with.
I suggest that you try and discuss the issue with your ex wife, explaining to her the reasons that you think your choice of school is preferable. You can do this between the two of you or with the assistance of a trained mediator, who may be able to help you reach a compromise. If you remain unable to reach an agreement with her then unfortunately, you will be left with little option other than to apply to the Court for a specific issue order. This is an application to the Court to determine the school that it believes it to be in Rachel’s best interests to attend.Q. My girlfriend and I are planning to marry next year and it will be the second time around for both of us, having met when we were still married to our respective other halves. We each have considerable assets from our first marriages and having discussed matters, we would want those assets to be protected for our children. A friend of mine said that we could get a prenup but I did not think that they were recognised in this country. Is that true?
A. Although pre-marital agreements are not currently binding under English law, they remain one of the factors to which the court should have regard in assessing the financial entitlement of each party on divorce. In recent years, the courts have moved towards paying their terms greater heed, provided of course that the agreement has been fairly drafted and fulfils certain criteria.
In fact, in the very recent case of divorcing millionaires Stuart and Susan Crossley, the Court of Appeal has confirmed the persuasive nature of the pre-marital agreement, it being considered “a factor of magnetic importance” rather than simply a peripheral aspect of the case.
Given the increasing significance of such agreements, I suggest that you and your partner think very carefully about separately taking legal advice before your impending nuptials. Although many people believe such agreements to be unromantic, they will hopefully mean far less heartache in the future.
Q. My wife had an affair with her boss a year ago. She apologised and I agreed to try and make the marriage work. Unfortunately, I just cannot get past her infidelity, especially as she still works with him and so I want to start divorce proceedings, on the basis of her adultery with her employer. Is there anything to stop me doing that?
A. Yes. As you have been aware of the affair for over six months and yet chosen to continue to live with your wife, you cannot rely on that instance of adultery. In these circumstances, you may wish to discuss with your wife issuing a divorce on agreed grounds that could rely on her behaviour, with a view to obtaining the divorce you both want quickly. The other options are to wait for either 2 years separation which would be dependent upon your wife's consent or 5 years separation which has no requirement for consent to be given. In either event, it would be advisable to ensure the financial arrangements between you are agreed either through mediation or by court order.
Q. My ex-wife and I divorced last year and our 2 children, Molly and Frank, live with her and see me at the weekend. She has now remarried and has had 2 more children with her new husband. She wants all the children to have the same surname, which I am not happy about. My ex-wife says that it is nothing to do with me. Is that really true?
A. No. You share parental responsibility for the children with your ex-wife and therefore she cannot legally change their surnames without your consent. In fact, the courts have stated that a name change is so important that any father should be asked to give his consent. If there is a dispute then the problem can be discussed and mediation is usually a good option as you can both express your views and seek to reach an agreement that provides the best for your children.
If she is not deterred and changes the children's surnames in opposition to your wishes or refuses to mediate, you have the option of applying to the court under the Children Act and ask the court to decide a "specific issue" - namely, whether it is in the best interests of the children that their surnames be changed.
Q. My husband and I separated 4 years ago and since then I have moved in with a new partner and we have had a child together who is 18 months old. I intend to commence divorce proceedings and in addition to the divorce petition, the staff at the court office have asked me to complete a form called a "statement of arrangements for children". Do I really have to complete this given that my child has nothing to do with my husband?
A. You do. The court will expect to see a completed statement of arrangements form if either party has any children either under the age of 16 or under the age of 18 if they are still in full time education and this is irrespective of whether they are children resulting from your marriage. The reason is that the judge must certify that he is happy that the arrangements for all the children have been thought through and are satisfactory.
If you are unsure as to how the form should be completed or how much information you are obliged to provide, you should obtain advice from a solicitor as court staff are not legally qualified and therefore will be unable to answer such questions.
Q. My wife ran off with another man last year, leaving me to look after our 2 young children. She has now been in touch and says that she wants a share of the equity in the marital home. Surely she is not going to be entitled to anything?
A. The courts are often asked to consider settling finances between a husband and wife when a marriage has broken down. The judge will not make moral judgments on a party's behaviour but will look dispassionately at the length of the marriage, the contributions each party has made (financial or otherwise) and their future needs. The court must give the needs of the children paramount importance but are then trying to settle the assets fairly regardless of fault or blame. Before any agreement is entered into and during the negotiations, it is helpful to have access to specialist legal advice to assist in understanding the types of order that a court can make.
Wright Hassall Solicitors LLP are based in Leamington Spa, Warwickshire.
See their details in our Directory
or visit their website.
We shall print a selection of letters received by Divorce Aid after
editing details.