Separated but not apart

Separated but not apart

The economic situation in the UK is currently not something that can be avoided especially for couples who are on the brink of separation. The news reminds us daily that the economy is fragile; with interest rates currently at a 15 year high of 5% and UK inflation currently at a 50 year high of 8.7%. Food inflation is said to be at a 13-year high. The Bank of England has warned that interest rates could top 13% at its peak, the highest rate since the early 1980’s. The average five-year fixed rate mortgage now has an interest rate of more than 6%.

10 million of the UK population are struggling to meet their household expenses according to the Financial Conduct Authority and 43% of adults in the UK are finding it difficult to pay their rent or mortgage payments.

At times like this, families living in one household are really feeling the pinch. The situation is potentially magnified for couples who are in the process of separating. In times of economic downturn – couples are often forced to ask themselves: can we even afford to separate? For many the answer is no, the cost of two homes is simply not affordable.

FM Family Law have considered this crisis for ‘separated but not apart’ families. There are a number of practical measures to help separating couples in this situation.

Finances

The first step to sorting out new or transitional financial arrangements can often be the most uncomfortable. However, we recommend sitting down and discussing expenses and budgets. Work out what is affordable and what payments could be stopped. Do this as early as possible to help manage expectations and set clear boundaries.

If you have a mortgage there are a number of short-term changes to finances which might be made to help alleviate some immediate financial pressure. Talk to your mortgage lender about the possibility of a mortgage holiday or moving to an interest only mortgage. This may affect credit ratings and may not always be options. We recommend speaking to your mortgage provider and a financial advisor about the long-term implications of these options.

Support for mortgage interest is a loan from DWP to help you pay the interest on your mortgage or home loan.

Are you entitled to benefits now that you are separated? Check benefits such as child benefit and universal credit.  Talk to your local tax credit provider and explain the situation to them. You may be considered as separate for the purpose of entitlements even if living in the same house, however do take care to notify HMRC of all changes to avoid a risk of tax fraud.

If you have a joint bank account, it is important to discuss how they are going to be used. Each co-owner of a joint bank account is legally entitled to withdraw any funds and spend them as they see fit. However, if the account is overdrawn each account holder is also severally liable for the whole of the debt, even if the transaction was now down to you. In order to avoid disagreements over spending habits and potential lack of trust over how the funds are being spent – consider minimising the use of joint accounts or else closing them altogether.

Debt management is key at this time. If you are managing debt as part of your finances, sites such as the Citizens Advice Bureau and Money Saving Experts offer practical tips on debt management which may form an important consideration in how you manage your finances.

If you are over 55 and have pension assets, consider a drawdown of your pension, of which 25% should be tax free. However, pensions are important and complex assets in the overall financial settlement to be reached on separation – so do take advice from a Pensions on Divorce Expert or Financial Advisor when considering any draw down of pensions.

Equity release – Most couple’s wealth is tied up in their home – and access may be needed to that resource in order to rehouse both of the couple longer term. Interim measures could include one person renting whilst the financial arrangements on separation are ironed out – but with the rising cost of rent and mortgage rates, for many this is a not an option.

Living arrangements

Setting out ‘ground rules’ whilst living together but not apart separation early on can help to avoid tensions This could include:

  • Moving to separate bedrooms if there is room;
  • setting times when one person will be out of the home;
  • agreeing times to use communal areas in the house;
  • divide chores more formally than was previously necessary
  • agreeing how to food shop and how that will be funded.

Children

Explaining to your children that their parents are separating can be very difficult. Professional support can help you communicate this in an age-appropriate way; whether this is by agreeing together what they are told or considering ‘child inclusive mediation’, family counselling or additional support through the child’s school. Generally, it is considered best for parents to agree the same message to the children and give the children lots of assurances that they are loved and that the separation is not about them.

To assist in the transition to two homes, it can be helpful to start to build new routines early on. Setting out a plan for childcare as if there were two physical homes can help to build the new co-parenting routines whilst making sure each parent enjoys quality time with the children.

In some cases, this may simply be setting out the school run timetable and designated days for activities. In other cases, this may go so far as each parent taking it in turns to vacate the home to allow the other parent to care for the children. This is known as ‘nesting’; the children stay centred in the family home whilst the parents take turns to not be in the house. There may be financial implications of this approach if staying with friends/family locally is not an option and nesting may not work for every family.

Support and advice

There are a number of difficult topics to address when any relationship comes to an end – but more so where remaining in the same home and managing the childcare and financial implications of a separation. FM Family Law are experts in children law, divorce and financial arrangements and can help you to navigate these situations whether by legal advice or mediation support.

Going through a separation is a difficult time for anyone – but there is an additional layer of practical and emotional stress when remaining in the same home. It is important to reach out for support where needed; be this friends and family, your GP or a specialist service such as Home | Relate.

 

Authors Fiona McLeman and Caitlin Levins who are both specialist family law solicitors.

 

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance. The above should not be reproduced without consent.

Friday Focus on Sharon Weeden

Friday Focus on Sharon Weeden

To celebrate Sharon Weeden joining us as our 12th member to FM Family Law, we asked Sharon a quick Q&A to continue our Friday Focus series so you could get to know a bit more about her. If you missed any of our previous posts, you can find them here.

 

What’s your role at FM Family Law?

Team Assistant

 

What do you most enjoy about what you do?

Interacting with clients and getting a sense of achievement in my work load.

 

What is your proudest achievement?

Apart from raising the next generation into kind and compassionate adults, trekking/camping the Inca Trail and climbing Maccu Piccu!

 

What legal-themed book/film/TV-series would you recommend to others?

There are a few.  To Kill a Mocking Bird (book), Jagged Edge, Philadelphia and Devil’s Advocate come to mind.

 

Who is your hero or someone who inspires you?

Don’t have a hero but recently came across a 92 year old lady with all her faculties, still driving her car and going about her daily life; leisure at the gym class and helping her daughter at a hair salon – truly inspirational and a joy to have met her.

 

What skill do you think everyone should learn?

Empathy.  Consideration for others.

 

What’s the best advice you can give to someone who is still deciding on what they want to do as a job or career?

To reach their full potential they need to enjoy what they are doing.  They will sometimes have off days but on the whole need passion and belief in their job or career.

 

What’s the best advice you give yourself?

Don’t sweat the small stuff!  I worry far too much! Life’s too short just enjoy it.

 

Sharon Weeden

Sharon Weeden

Team Assistant

Death and Divorce

Death and Divorce

The Supreme Court has ruled unanimously that financial claims on divorce cannot be pursued after the death of one of the spouses. The court upheld the long-held position that the court’s power to order financial relief could only be exercised as between living parties to a former marriage.

The case arose from a married couple who were divorced in Pakistan. The former wife pursued (as she was able to) her financial claims on divorce in England. Before those claims were concluded, the former husband died. The former wife applied to the court for permission to pursue her claim after his death against his estate.

The established view is that a financial claim on divorce is purely personal to the parties involved. The claim could not survive the death of either spouse and could not be pursued against the estate of the deceased. The judge sitting in the lower court had little option but to dismiss the former wife’s claim as the court was bound by a prior decision made in a higher court on this very matter. However, the judge recognised the illogical nature of the conflicting outcomes in prior cases where death occurred shortly before or after trial and granted permission to the former wife to proceed with her appeal by ‘leapfrogging’ to the Supreme Court. In a sad twist, the former wife died shortly afterwards but the court allowed the appeal to be continued by her estate since it involved important points of law since questions had arisen on the continued validity of the established view due to a number of developments.

One consideration is that if a spouse dies before concluding financial claims on divorce, the Inheritance (Provision for Family and Dependants) Act 1975 permits a claim by the surviving spouse against the deceased spouse’s estate. This can also apply even if the spouses were divorced before death. However, this legislation is only available where the deceased is domiciled in England and Wales (i.e. this country was considered their permanent home). With an increasingly globalised population, and very wide rules on where a divorce can be obtained, this means many individuals are not necessarily able to rely on the 1975 Act to continue their financial claim against their former deceased spouse.

The court also considered that in Barder cases, an unforeseen circumstance, such as one party’s unexpected death, might invalidate the basis of the original financial order. This can lead to the possibility of the court making fresh provision for the benefit of the estate of the now deceased party. With this in mind it is difficult to understand how this is consistent with the view that financial claims end on death.

The Supreme Court however confirmed the correctness of the established view. The Court emphasised the proper construction of the statutory provisions governing financial remedy on divorce and that it was intended by Parliament that financial claims would end on death. To change this would require the government to reform the law.  

The Court in its judgment did however acknowledge the injustice caused by the extinction of claims upon the death of a party. This is particularly so in this case since the divorce had already been finalised, and the financial provider (in this case the husband) died not domiciled in this country. The court also noted that the delay in the final hearing (which would have concluded matters possibly before his death) appeared to be as a result of issues with the former husband’s disclosure.

This case highlights the importance of trying to resolve matters in good time as well as appreciating the potential implications of the death of either party for the survivor before financial claims have been finalised. Further, that if there are concerns regarding a party’s health and/or there are additional complications as a result of a divorce concluded abroad or an individual who is not domiciled in this country, then it is important to seek legal advice at an early stage.

If you would like to discuss the issues addressed in this article then our expert lawyers can support you. Please contact a member of our team here.

Judgment of Unger v Ul-Hasan [2023] UKSC 22 available here.

 

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance. The above should not be reproduced without consent.