Ask the Experts

Separation agreements

Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife & I are in the middle of attempting a financial settlement between the two of us. We have two children, aged 20 & 22. I have as a goodwill gesture agreed not to contest any of the furniture / assets. We are selling the house. My wife believes thast she is entitled to 65% of the value as a clean break settlement, for reasons that escape me. I am prepared to be reasonable, but I am curious on the legal position. is there a formula for calculating this?
A.	I think if the children are grown up, and you both work the a 50% split would be appropriate unless she can how she has a greater need for capital than you because her mortgage raising ability is less for instance.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am writing to initially inquire about legal separation requirements. My wife and I have been separated since February 2002. However, we do not have any documents drawn up to that affect. We both agree with this separation and we both know that it is irreversible. I would very much to know the procedure for legalising the separation, i.e: *) would the fact that we both agree, and the circumstances could prove our separation, be considered sufficient and legal *) Does a legal separation require an application to a court in order to be recognised. *) Would a private agreement signed by both parties be sufficient and legally binding. I would very much appreciate yiur help in clarifying the required steps. Thanking you in advance Mehdi Tabatabai
A.	The best way to make sure your agreed terms are dealt with is by way of a separation agreement. This document sets out how your finances will be dealt with, any children arrangements and gives a timetable for the divorce, usually after 2 years separation. You can document the separation date so you can proceed with the divorce 2 years after the date given. Divorce-Online can draft your agreement for you for £80.00 http://www.divorce-online.co.uk/legalcentre.asp
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I have been married for 14 years.4 years ago she had a 2 year affair which we have both tried to work through since but cant resolve. We're considering a seperation to move away from each other. As a result she is looking for a new house. We did think about dividing everything up equally and moving on. A friend however suggested we should either divorce or at least legally set upp a deed of separation to prevent future problems. Have seen your standard D.O.S. form online.Would this be suitable. We have no dependants just posessions to resolve. We have fairly much agreed who wants what etc.
A.	Yes the deed of separation alows you to divide your assets as you want and then creates an agreement between you that there will be no claims in the court in relation to the matrimonial finances and that you will both agree to that being put into an order when the divorce is filed after 2 years.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband and I have agreed to legally separate after almost 12 years of marriage, it's an amicable descision, no other party is invloved. We don't own our own home, the only 'assets' being the contents. We do, however have 3 children, ages 11, 8, 6, which we have agreed to joint custody to. We still both live in the house, but as 'flatmates' not as husband and wife, this has been the case for sometime.Perhaps sharing accomodation is a better way to explain it. We would like to apply for a Deed of Separation online, as there is no immediate need to divorce. Do we actually need to see a solicitor to do this. Thank you
A.	Yes the deed of separation allows you to divide your assets as you want and then creates an agreement between you that there will be no claims in the court in relation to the matrimonial finances and that you will both agree to that being put into an order when the divorce is filed after 2 years.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Married 1993, 2 children (7, 4.5). Agreed to separate 12/2000, sold house, divided proceeds. Wife now lives with children in new house, I am about to purchase new house. All financial details have been worked out and verbally agreed, visitation also. I've been advised, however, that in order to prevent any risk of my new property being subject to a claim that my wife and I should sign a Deed of Separation as soon as possible. Is this correct, or if it is not, how can I ensure my new house is not at risk?
A.	Yes a deed of separation would give you some protection until you are able to file for the divorce after the 2 years is up. The court can in some circumstances overturn parts of the agreement if they think it fit to do so, but where the parties have come to an agreement with full dislosure of assets having been given this is unlikely to happen. In reality a separation agreement is the best insurance policy you can get until you apply for the divorce and have an order made which is then binding thereafter.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I separated from my wife nearly 5 years ago. We drew up a separation agreement under which I paid £500 per month both to her and each of the children still in ful-time education. All of the Children have now left school (1 is at university) and although she has never admitted it my ex now has a greater earning capacity. The family home was sold and split 80/20 last year and I bought her share of the endowment policy (80%). The maintenance is inflation proofed. My ex used her share to buy a property on which she has no mortgage. I have been forced to buy a new property with only a small deposit and have a large mortgage. I am self employed and have an annual income of around £90K. I intend to seek a divorce after the 5 years and would like to know what the chances are of having my maintenance payments reduced?
A.	The separation agreement is an agreement, it is not a binding court order and is therefore capable of being looked at by the court to see whether in the circumstances of the case some or all of the agreement should be upheld. My advice is to tell your wife that you seek a reduction of the maintenance and that if it cannot be agreed you will apply to the court for Ancillary Relief to have the whole of the finances looked at by the court as the court has discretion to make such order as it thinks fit in the circumstances of the case and in your view because her circumstances have changed they would be more than likely to agree to a reduced maintenance provision. If she does not agree and loses she could be at risk of having to pay your costs of the application as well as her own.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My husband and my self married in June 2000, in March 2001 my husband left the marital home we have been separated ever since. My problem is our house, my husband did not put up deposit or pay the mortgage or other household bills during our engagment or marriage (apart from phone bill occasionally). The house is registered as joint owners I am in sole possession of the house at present but am worried he could put a claim on half of the equity since this is rising due to market conditions, we cannot get a divorce until next spring (2 year separation) is there anything I can do to remove his rights of a claim on the house?
A.	My advice would be to enter into a formal deed of separation setting out your agreed financial position pending the divorce. This will give you a large measure of protection until the divorce begins and you can file for a consent order. In the deed you need to set out that he will transfer the property to you for no consideration unless you agree a lump sum payment to him for his share of the equity.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I separated in July 2001. We have split all assets amicably and now want to proceed to divorce. If we were to agree a 'deed of separation' can it be backdated to the date we separated and, if so, is any proof required as to this date?
A.	If you want to divorce in the near future you can only use behaviour or adultery as your grounds. The next option is 2 years separation with consent. You do not need to prove as such your date of separation as when you file for the Decree Nisi in the divorce, you have to swear on oath an affidavit that you have been separated for the 2 years or more. If you have only just separated and will be waiting the 2 years then a separation agreement would be advisable as it will deal with your agreed financial arrangements and set a formal date for the separation. it also obligates both parties to consent to the divorce and subsequent financial order when the 2 years is up. We can arrange the deed for you for £80.00 http://www.divorce-online.co.uk/legalcentre.asp
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Will the courts accept financial arrangments agreed between us even if they are unbalanced? I have left my husband of 22 years. We have no children or mortgage and both earn good salaries. I now live with a new partner and would like to remarry. (He owns his own house) I am willing to give my husband the house we shared valued at about £190k (joint names) and his full pension which is much larger than mine. We can arrange the divorce amicably ourselves but need to know if the courts will insist that I am given my share of property and pension which I am happy to relinquish
A.	The court cannot make you agree to something other than what you have agreed with your husband where a consent order has been filed. It can ask you to attend an appointment to discuss the matter more fully to make sure you know what you are doing and that there has been no duress, but if you are adamant that you want the order, it has to make it.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	After separating Dec 2001, my wife now wants to try again - whilst I am willing to consider this option I want to ensure that I have financial security. We had previously agreed in principle a financial separation that we both happy with. before we 'try again' I would like to pay her off financially so that if after a couple of months we decide that it is not working. I wont have to renegotiate a financial settlement. During the next few months we will just start seeing each other as friends and see where we go. Any suggestions as to what would be the best way forward for me Thanks
A.	It would be advisable to have a separation deed drawn up which will deal with the financial aspects of the matter and give you some security and also will allow you to divorce after 2 years. if in the meantime you cohabit for more than 6 months the terms of the deed would be fairly irrelevant.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	What do I have to do to become legally seperated?
A.	You don't actually have to do anything as legal separation does not exisit as such. If you want to get an agreement together that sets out how the separation will proceed to divorce and how the finances will be dealt with you can get a Deed of Separation drawn up which will deal with these matters pending a divorce taking place after a defined period. If you do not want to get divorced you can get a Judicial Separation from the court which can deal with the finances but is not a divorce.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I have finally been able to come to a financial agreement. We have agreed a sum of money that will then preclude her from making any future claim on my pension. However, she wants to wait until Sept 27th so that we can divorce by consent on the being separated for 2 years rule. Is it possible to have a consent or clean break order made out now and hold it in reserve until September? If not, are there any real benefits in waiting for the 2 year rule or will a divorce now for say, unreasonable behaviour cost us very much more or be any more complicated? Will D on L be able to draw up the clean break ?
A.	What you can do is have a separation agreement drawn up pending the divorce if you have to wait until September. You then have a consent order drawn up to put the agreement into effect. We can deal with the divorce, separation agreement and consent order for you.
Answered by: Simone Katzenberg, Solicitor
Q.	After 14 years of marriage my wife has decided she wants to call it a day. I suggested talking to someone but she's not interested. She hasn't yet told her sons (from her first mistake rather then her current one) who live locally or most of her relatives. We have a 12 yr old daughter who I need to ensure is looked after. Because of this I have said that my wife can have any proceeds from the sale of the house and endowment policies. I have taken a big (£13.5K) loan from the bank in lieu of what she would be entitled to from my pension etc. which I have given to her to spend as she needs. I have made no condition on what she spends it on although I know it has all gone on a house. In total about £85K, on top of which I have said I will pay £100 a month for 'running' expenses for my daughter. I've got a few pieces of furniture and the overdraft from hell. Sale of the house is due to be completed Wednesday at which time we will move to separate towns, 30 mile apart. We have an informal agreement that we would both be happy to put our signatures to but I wonder where I go from here. There are no third parties involved but at the same time no way back from this position. I have met all agreed points so far in making the money available and, as far as they went, so has my wife with access to my daughter agreed as unlimited with joint care and control. I'd like this sorted ASAP. Do we have to wait 2 yrs? As I mentioned earlier the breakup was because my wife decided that was what she wanted and I don't want to go back now. No-one else has been involved in this. Is it worth while drawing up a separation agreement to formalise our position? My wife has never been in employment and was in receipt of benefit with the two boys, then aged 3 and 5 when I met her. There is agreement to divorce and neither of us would contest it. Who should start proceedings and will I get stuck with all the costs?
A.	It is as always very important to take independent legal advice. If you are dividing up assets and sharing out the money you absolutely should have a formal agreement. either one of you should be able to divorce the other on the grounds of unreasonable beahviour which means that you don't have to wait two years. It would also mean that you can formalise and finalise the financial agreement so that it is all over once and for all. Take legal advice and make sure its done properly. And yes you could end up being stuck with the costs especially if it isn't done properly. the sooner you deal with this the sooner it will be over.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My partner and his wife separated after 21 years of marriage. He paid the mortgage and bills for 9 months until the marital home was sold. They then had a separation agreement drawn up by a solicitor and properly witnessed, which detailed how the equity and endowments were split, that he would pay her £200 a month maintenance for 2 years and that they would have no claim on anything independantly owned outside of the agreement. It also stated that they would divorce after 2 years from the separation, on the grounds of that time apart. The sons of the marriage are 19 & 21 and financially independant, although the youngest lives with his mother and pays her rent. The agreement was formally witnessed and both have copies. When the marital home was sold, both parties bought their own homes (she also owns a second house jointly with her brother, from which she receives rent) her boyfriend moved in with her (and pays rent) and we live in ours. We also have a 6-month-old daughter. The two years were up, so my partner applied for the divorce. She has returned the application undefended, but has indicated she intends to apply to the court for a financial order to consider her financial position. Not unaturally, we are astounded at this, as she certainly doesn't need the money and it seems to be plain greed. My question is, would the Judge who holds the first appointment take any notice of the separation agreement and dismiss her claims or would he ignore that and start again? Does the process automatically hold the 'First Appointment' or does someone check through the paperwork and dismiss any claims they feel are pointless first? We do quite fail to see on what grounds she can still be after maintenance, (which she will still be paid until March 2002 under the agreement terms) as the boys are grown-up, but also know from other experiences, the law is not always fair. Many thanks. Angela
A.	It may be that she is not actually applying for any additional monies from you, but to enable the court to make a consent order on the basis of the agreement. If she is asking the court to consider the finances, they will have to take the separation agreement into account especially if it was made with legal advice. You should however get some legal advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife left the family home approx 17 months ago to live with another man, taking our 11 year old son with her. I have him every w/end and if I cant then I have in 95% of the time arranged for him to be looked after at my mothers home. I pay her £100/month for my son, but I want to know where I stand with regard to our family home. She left me with a credit card bill of approx £1500 which I am paying off and I pay all of the houshold bills, as she has contributed nothing for the last 17 months where do I stand? would I have to sell the house if she decided? as this would leave me homeless ( I have company accomodation arranged during the week) I realise that My letter is a little confused, and I apologise for this. But I am concerned that I could logically loose the house in which I am living. please could you give me some idea as to my options?
A.	Your wife cannot force a sale, only the court can do that and it would have to look at all your circumstances before making such an order. Your wife is entitled to some of the equity, it is just how much and whether you would be able to buy her out. I suggest you obtain legal advice as soon as possible.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My partner brings home about 35k a year and I earn 20k. Our money is at the moment supporting 2 houses, 1 ex-wife 5 children 2 dogs, a cat and a horse! Our expenses on the bills, mortgage etc, come to about 1700 a month. Mark's ex at present receives £800 per month + £500 mortgage payment, which in fact comes to more than I earn a month. His ex refuses to look for work and has said that she wants him to support her to the tune of £900 per month until the youngest child (6) of the three is 17 etc as well as having the mortgage paid and having the house made out in her name. She has never applied to the CSA, as the amount that she should receive is less than £600, to include housing costs. We are going to court next week for an FDR. We cannot afford to keep paying this amount. I receive no maintenance for my children from their father..he moved to Sweden to avoid paying and although I am trying thruogh the swedish courts to get money from him, it is 15 months since I received any maintenance. We have offered her all the house if she would agree to the morgage payment and payment of £150 per child per month until 17 etc. What is likely to be the result of the FDR? What happens if the judge gives his opinion and either party don't agree? How likely are the opinions of the judge to be what is finally decided if it gets to court?
A.	The opinion the judge gives at the FDR is an opinion based on their experience and case law and is the most likely outcome if the matter went to a final hearing. However it is not binding but for guidance as to settlement.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	A basic question, I'm afraid. I have lived apart from my wife for two years now, no children, and she lives in our jointly-owned property. She has recently moved her boyfriend in and they have decided that they would like to keep the property on and buy me out. My wife and I are on good terms and have agreed the financial settlement and we are about to start proceedings based on two years' separation by consent. I have seen a solicitor and am now totally confused as she wants me to provide full disclosure on all my finances yet my wife's solicitor is advising no such thing to her. Why do I need to do this if we have agreed the finances? Is it a condition of the divorce proceeding or have I got the wrong end of the stick?
A.	Both parties should give full and frank disclosure of each others finances in order to ensure that the court has all the facts before a consent order can be made.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I hope you would help me on the following. My wife has left my house with our one only son. She has started claiming Income support and applied for council home. She is currently moved to A REFUGE hostel. She has done all this on the basis that I have mentally abused her and I have not given her enough money for her pocket expenses. She has told them that she don't want to live with me and need temporary separation. Now, I just want to ask you that "Can I claim a divorce on the basis of Unreasonable behaviour??" Is this act of her's can be considered an "Unreasonable behaviour". I need a clear picture before filing a petition of Divorce on the said grounds. If my question is little vague , I may tell you in more details as well.
A.	From what you have said, it would appear that you are the party who is guilty of the unreasonable behaviour and your wife is fleeing from your behaviour. However that said I can see that you are actually saying that what she is saying is not true, and that she is making up terrible things to make you look like the guilty party in the breakdown on the no smoke without fire premise. Unreasonable behaviour is subjective and if you find her behaviour unreasonable, the test is would I, if I were you, think that the behaviour was unreasonable.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	After only 7 months marriage, my wife walked out on me. We had lived together for 14 months before the marriage in my house. We have now been married for 1 year and both want an amicable divorce. I am going to cite adultery which she is begrudgingly agreeing to. She says that as she gave me nothing (materially) she wants nothing, ie finance. My question is, how do I get a written guarantee off her that she will not claim anything off me later on? I don't particularly want to disclose my full worth to the court because I'm worried the court may award her monies that she did not originally ask for?
A.	If both parties have reached the agreement, in writing, with the benefit of legal advice, then the court is highly unlikely to overturn that agreement at a later date. You have duty to disclose all your income and assets to her and to the court.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I have a date for first directions on ancillary relief, but don't know what to expect in the 20 minute hearing. The papers say I have to prepare a statement of the issues to be addressed and a chronology. The issue we are having problems with is over the valuing of a pension. I argue it is over valued due to the type of scheme and my part time owrking after a oeriod of full time pwrk ( the scheme is final salary type and the CETV is based on an estimate of my last 12 months earnings when I was working full time).Also, what kind of thing goes in the chronology?
A.	At the first directions appointment that Court considers how the case is to progress. That is they decide whether it is appropriate to go straight to a trial or to go to a Financial Dispute resolution appointment. In order for the Judge to decide this he or she has to know what the areas of dispute are. Your statement of issues lets him know this. Your chronology helps him ascertain important facts, such as ages of parties, children and length of marriage. Usually the chronology states dates of birth of the parties, date of marriage, dates of birth of any children, dates of importance and dates of the divorce and financial application. The Court will at the appointment issue directions, such as obtaining a joint valuation of your pension from an actuary. This however may not be cost effective depending on the value of the same. They may also direct that you or your wife have to answer questions which are raised in your questionnaires.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife left home 5 weeks ago, moved into a bedsit and is visitng and seeing her boyfriend. Myself and my twin daughters aged 18 and in full time ducation remain in the marital home. The relationship commenced at work (also my workplace) in 1997 and developed into an affair in mid 1999 and ended when I confronted it in May 2000. The relationship was never broken off and resume to an unknown extent in early 2001. I understand the boyfriend is now unsure about the relationship but my wife hopes it will succeed and they will be together. I have petitioned for divorce and am seeking to reach a private financial settlement. I have two houses, the marital home and another I rent out so there is no problem with equal division of equity. The boyfriend has his own flat. How significant is the intention of my wife to cohabit with her boyfriend in discussions to resolve the finacial settllement ?
A.	Intention to cohabit is a factor the Court take into account when considering distribution of financial assets. However bear in mind that if you have been married a long time your wife is probably going to be entitled to 50% of the assets due to that fact. Without knowing the full financial picture I could not say what sort of settlement is likely. I would advise you to go an see a solicitor with all your financial information and they would be able to give you some assistance.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My partner has been separated from his ex-wife for approximately 9 years. We have been together for nearly 5 and they are now going to get a divorce. My partner and I bought a house just over a year ago and his ex-wife says she can get ½ of everything he owns. I don't think she has any right to our house (it is in joint tenancy) but she thinks she does.
A.	Rosemary Technically she is able to claim against any matrimonial assets which will include your partners share of the equity. However, that said, after 9 years it is highly unlikely she would succeed as the court have to look at all the circumstances of the marriage as at the time of any application. IE income capital needs and contribution to assets. To put his mind at rest I suggest you arrange an appointment to see a local Solicitor to get a free consultation using our LegalAssist service, which you will find on the home page on www.divorce-online.co.uk
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I want to divorce my wife. we have 2 children 2 and 5 and have a joint mortgage. I do not want a long drawn out process as I wish to be with someone else. How long must I wait? I intend to be more than reasonable with all my spouses request regards child maintainance. What is my position regards finance.
A.	The court looks at all the circumstances when making financial decisions. As you have children, they will be concerned to maintain her housing position for her and the children and to ensure thay have enough money to survive. They will also wish to ensure, you are also able to carry on financially. There are no hard and fast rules to this and I suggest you gather together all your financial documements and work out what your assets and liabilities are, your respective incomes and any pension entitlements. Once you have done that, you can either choose mediation or see a Solicitor to advise you on your exact circumstances. The more you can agree now, the less it will cost in the long run.
Answered by: Simone Katzenberg, Solicitor
Q.	My husband and I separated a year ago. He left the matrimonial home and agreed to pay me £400pm voluntary maintenance for our 2 children. He reduced this sum to £200pm in October and at the beginning of December I instigated divorce proceedings. The petition has now been filed with the Courts and we are waiting for my husband to confirm that he has received the petition. (I understand that, if he fails to acknowledge receipt of the papers then these will be served upon him in person). Because I am currently not working, I have sworn an affidavit this week to allow my solicitor to pursue a claim for "interim maintenance payments". My question is what will be the sequence of events from here. I have presumed that the next step will be a date set for the Court Hearing to see if the divorce can proceed and I would assume a separate hearing will have to take place for the maintenance application to be considered. Is this correct, and, if so, will I have to attend the hearings?
A.	I will answer your question in two parts. Firstly in relation to the divorce, if your husband does not co-operate and send back what is called the acknowledgement of service which confirms that (a) he has received the petition and (b) that he will not defend the divorce, you can have a copy served on him personally by a process server. Given that you started the divorce in December, if he hasn't sent back the acknowledgement of service yet, I suggest that you have the petition served on him personally so that the matter can proceed. You do not need to attend court for the divorce itself. However in relation to your application for maintenance pending suit, a date will be fixed when the application will be heard by a District Judge. Although its not essential that you attend court, its better that you do and I think you should. The court will in all probability make a decision there and then on the interim maintenance. You then will also need to deal with all the other financial matters which you lawyer will initiate on your behalf
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Close friends or mine are getting divorced, it's a mutual seperation (no children invloved) and are currently in the process of having a serparation agreement drawn up. I'm told at that point their two years separation will begin. What they both want to know is can they have a new partner once they are separated without risk of said partner being accused of adultery and that being used as grounds for divorce? As I already said it's very amicable at the moment, but in the future one or other of them may decide that it'd be quicker to sight the new partner of the other in a divorce to get it 'over and done with' even though the adultery in question didn't cause the breakdown of the marriage. Any information or advice in this area would be useful. Thanks in advance.
A.	If they enter into a separation agreement that states the separation occurs from the date of signing, then they cannot cite adultery as being the reason the marriage irretrievably broke down, which is the only ground for divorce.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My wife and I had agreement to divide property and joint custody with the children. We went to see her Lawyer and she told him what she wanted ( our agreement) the Lawyer said he did not agree with our agreement. Since then he has tried to get my future ex and I to argue about everything. I am paying child support and I'm stuck with the credit card debts. What can I do? Is it legal for the lawyer to disagree with what we want?
A.	Unfortunately for you, the lawyers first duty is to his client, your wife and not to the agreement reached. If he considers it would not be in your wife's best interests to accept the terms of the agreement, then he must advise her of his views. However if your wife insists on abiding by the agreement, he has to respect that and deal with her instructions, making it clear that it was against his advice, to protect himself from any potential negligence claims in the future.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My wife and I separated amicably in November 2000, after taking out a mortgage in joint names in June 2000. My wife is willing to forego any interest in the house, as I will take over all financial obligations, but she wants to have an agreement in place that frees her from any financial obligations in the future. As the mortgage was calculated on our joint incomes, we are worried that telling the mortgage company about the change in circumstances will affect the mortgage offer and I will lose the house, even though I am capable of covering the payments myself. In addition, I work as a freelancer, and at the time of the mortgage issue, I was able to supply them with a letter of guaranteed income, but I am no longer able to do that due to a change in employment. Can we make a legally enforceable agreement without telling the mortgage company about our separation? What is the most cost effective way to do this (neither of us have additional funds for solicitors)? Thank you for your excellent website and I look forward to reading any advice you may have.
A.	There are a couple of ways of dealing with the above problem. Within divorce proceedings you can have an order made either by consent or by a Judge after a hearing. This order can allow for one person to 'indemnify' the other in respect of the mortgage or debt. This means that only one person will be responsible for the debt or loan. However that applies only between the parties to the order it is not enforceable against the mortgage-company. What that means is that the mortgage-company can pursue both of you but your wife can then look to you for this. The other way is similar to the above but the clause is incorporated into a separation agreement. This agreement is a document that parties enter into when there are no divorce proceedings. What might be worth you doing is making an application to the Building Society to see if they will agree to a transfer. If this application is not granted, then the Building Society will keep your wife's name upon the mortgage and all you will have lost is the fee for this application to be considered. Unfortunately there is no other 'legal' way around the problem. Your wife's name is either removed with the Building Society's consent or you indemnify her but the Building Society can still technically pursue her.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have been married 15 months. My wife moved out of home (no other person involved). Wife says that she doesn't want any money, only to take some items from the house that are hers together with some wedding presents given by her side of the family. The house was mine before wife moved in, solely in my name, I have paid all bills and upkeep. She does not want to see a solicitor for divorce, although will agree to a divorce. She wants to wait two years and feels that is all it takes. No children involved and both have well paid jobs. Where do I stand financially and should I see a solicitor straight away.
A.	In cases of short marriages, the parties usually keep what they brought into it, and divide the joint assets equally. It would be a good idea to have a separation agreement drawn up between you, setting out the agreed arrangements. so that when the divorce starts after 2 years, you can have a consent order drawn up to effect a clean break and no further claims between you. I suggest you use our LegalAssist service to get a free consultation with a Solicitor local to you, who will be able to give you a better idea about the costs.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	my wife and i are about to be divorced. we have sorted out the difficult bits and my questions relate to how/whether to formalise the arrangements and how to ensure that any future arrangements don't affect the agreement without mutual consent. The details of the agreement are broadly as follows: - I pay the mortgage on the house that she occupies with my son. - I pay my son's school fees - I pay all the household bills - I pay a small amount to cover extras. If/when my wife is in a position to contribute to the above expenses, my contributions will decrease by a mutually agreed amount. When the house is paid for the intention is that it remains the primary home of my wife and son. If I remarry (which is on the cards) I want to ensure that this arrangement is in no way jeopardised. What steps do i need to take (especially to ensure that the ownership/occupancy of the house is not in question (for example in the event of my untimely death or another divorce). thanks
A.	You need to see a solicitor and have the agreement you have arranged either embodied into a separation deed if there are to be no divorce proceedings or a consent order if there are. The order will define fully the terms of the agreement which will make it water tight for both you and your wife. Bear in mind that by the looks of the agreement your wife will be having maintenance order and this will mean that she could seek to vary it in the future. Likewise you could seek to vary these payments if your circumstances change. Although the solicitor will of course cost money, it is money well spent to make sure you are protected especially with regard to future assets. Bear in mind that your solicitor (and your wife's) will need full documentary evidence on both financial circumstances in order to advise you properly.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	He wont move out of the house that I mainly paid for, one 8 year old girl, no sex for 8 yrs, married 28, bitter rows which he makes in front of daughter. He won't divorce as he doesnt see there is a problem, and enjoys the fact that I am the meal ticket. How can i separate/divorce when we both refuse to leave the house. Can I have an official separation in the meantime?
A.	The plain answer is you do not need to be physically separated to divorce your husband. You do however need to get advice from a local Solicitor asap who will be able to go through the facts of your situation to prepare a divorce petition and write to your husband on your behalf telling him you will be instituting divorce and asking him to seek legal advice. You can then get on with making financial claims for the house etc. Divorce-online can help you do the divorce yourself but you will need legal advice for the finances and any children matters.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	Is there such a thing as "legal separation" without going through all the financial implications of divorce, just admitting openly not living together.
A.	You can get a Solicitor to draw up a separation agreement which will set out all the financial arrangements you wish to subscribe to. It can also set out what will happen to any children and when and if divorce is to take place.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I have been married for 4 years, after two years my wife and myself had a baby, things since then have not been going very well, my wife became a money hungry person and through me trying to earn more money for our family I started to ignore her and bascially through work. We have been seperated now for 4 months, we have tried to get back together but it just didn't work. I have since got a very good job and career and I stand to make millions in a deal in a few weeks. I want to know if my wife is intitled to any of the money (money that I want to work hard for, so my son doesn't have the life I had), if so is there any document I can get my wife to sign that will stop her from getting any of the money I stand to make while we are still married, but seperated, I am now getting worried because the whole thing could ruin me, my career and my childs future financial stability.
A.	This is a short marriage. However there is a child of the family. When considering financial relief for any party to the marriage the Court consider the 'section 25 factors'. These include, length of marriage, age of parties, children of the family, earning capacity of the parties, standard of living throughout the marriage, and in certain cases conduct of the parties, etc. As I do not have any of the information, I cannot advise on what is a good settlement and what is not. In your case you ask whether your wife could sign a document now preventing her making a claim against any future assets. If you were to get divorced now an order dealing with finances could be drawn up by consent. However if your financial circumstances were due to change in the near future this would have to be disclosed to your wife and her solicitor and ultimately the Court. It is therefore likely that your windfall will be taken into account if it is anticipated within a short space of time. Bear in mind the Court consider the reasonable needs of the parties. You do not say whether your wife is able to work or not as a result of caring for your son. If not then housing for her and your son will become an issue. However she is not entitled to claim over and above that which meets her reasonable needs. If you were not getting divorced it may be worthwhile trying to negotiate the terms of a separation agreement with her. This is a Deed, which is drawn up settling financial terms, which you both agree will be binding for the future. However bear in mind that technically these are not legally binding and if when the time comes to get divorced and deal with finances one party refuses to enter into an order embodying the terms they cannot be forced to do so. However, there does have to be good reasons for not doing so and if your wife was aware of the 'deal' at the time of entering into the agreement and she agreed to forgo any claims on the money then it is unlikely she could pursue it in the future. I strongly urge you to seek independent legal advice
Answered by: Gilliane Williams, Welfare Benefits Expert
Q.	I have been claiming tax relief with the Inland Revenue for the maintenance that I pay to my ex wife for my son. Currently they are not accepting the separation agreement as a legally binding agreement for qualification of relie, although for the last four years a different tax office has accepted it. There is no court order in place and the CSA cancelled the assessment made - for several reasons which I won't go into now. I am about to submit the last 4 years calculations for tax in an attempt to clarify that if one tax office accepts the agreement then they should. Also I have been paying on the 1st of each month for the last 5 years - without missing as the agreement between both parties is amicable. Any advice would be appreciated.
A.	In the circumstances, it is advisable to submit any evidence that may substantiate your position, including proof that you have indeed paid maintenance as you say. If as you say the arrangement is amicable they written confirmation from you ex may asist and any reciepts such as direct debit confirmation would also help. You are entitled to have made a voluntary agreement, and as this is the case then as long as you can substantiate it then the tax office should take this into consideration. If you havent aready done so, contact your previous tax office for details and confirmation that they did accept the separation agreement as adequate proof. However this may have been adequate as interim proof, and it may be the case now that further divorce details are necessary, this does not detract from the fact that a voluntary arrangement (that is one which the parties make without going through the courts)is viable. Your problem may be if you have nothing in writing at present,if so, it would be advisable to have the agreement formalised by having it drawn up by a solicitor. Please do not hesitate to contact us if we can be of further assistance
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	My husband and I have separated and have agreed maintence for our daughter and agreed that I can keep the house for a settlement of £6000 plus me paying a joint loan. My husband has typed a letter stating all of this, but as yet the house is still in joint names. In the letter he has stated that he relinquishes his rights and that he has agreed to sign the mortgage letter as and when it is received. My first question is, is it ok to do it like this and where can I lodge this document, just in case he goes back on his word? Also, when the divorce goes through would this document stand up or would it be disregarded by the court? Thanks very much
A.	You seem to be entering into a home made 'separation deed'. My advice to you would be to have this deed drawn up by a solicitor to make sure that your interests are fully protected. However bear in mind that said agreements are not legally binding upon the parties, however that it is not to say that if and when the time comes for the terms to be embodied into a Consent Order within divorce proceedings that the document does not carry substantial weight. Providing both parties entered into the agreement having had the benefit of legal advice and full disclosure was made then it is unlikely that the Court will over turn the Deed.
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