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I have been married to my husband, a professional footballer, for nearly 10 years. Due to his income, our major assets including our house were listed in his sole name. I am worried about what will happen to me and my children financially if we divorce, which looks increasingly likely. Is there anything I can do at this stage to protect our position?
Tracey Rodford, deputy head of the family team at law firm JMW Solicitors in London, says that under English law, it does not matter so much whether assets are held in the name of one spouse or both; what matters more is whether they were generated during the marriage.
In all cases, the first legal requirement is to work out what everyone’s “needs” are. This can be tricky to put a figure on, but in most cases, there is no excess left after everyone’s needs are met. Where there is, the law says that it can be fair to treat different assets in different ways, by sharing things that were generated during the marriage, but leaving with one spouse any assets they brought into the marriage. The situation may be different in Scotland, where the courts do not automatically consider any assets in the marriage to be included in the matrimonial pot.
Many married couples own a family home in joint names, but this is not always the case. When you are happily married, the property being held in one person’s name is not usually an issue. However, if your relationship breaks down you should take measures to protect your beneficial interest in the property. This is because where the property is registered in his sole name, your husband can remortgage or even sell the property without notifying you.
You can register a home rights notice against the property, ensuring that you will be notified if he tries to take any steps to sell or remortgage the property. This will also alert any lender or buyer of your interest in the property.
The family courts recognise that the family home is a special type of property in which both parties have an interest and that it is usually a matrimonial asset. This is most often the case even where the property that’s used as the family home belonged to one of you before you were married.
Matrimonial assets are different from those acquired either before the marriage or, in some cases, following the breakdown. Certain categories of assets, such as inheritance — when it has been kept separate to matrimonial assets — can also be classed as non-matrimonial if they were received during the marriage.
When you separate and divorce, you and your husband will have to agree how your finances are divided — with the hope that you each feel you have received a fair and reasonable share of the assets acquired during your marriage while each of you meets your reasonable future financial needs.
How can I see my grandchildren?
I am a grandfather of two children under the age of 12. When my wife was alive, she would walk them to their primary school and I would pick them up, and during the evenings we would share the responsibility of looking after them. Naturally, we grew very attached to them and felt as though we were their primary caregivers, as both their parents are paramedics and work very long hours.
Since my wife passed away, my relationship with my daughter has soured and she no longer lets me see my grandchildren. Is there any way I can see them? Are there other options?
Ffion Greenfield, senior associate at law firm Seddons, says family courts recognise the importance of the grandparent-grandchild relationship and the added support network it offers children and the benefits that can arise from that.
Grandparents do not have “parental responsibility” for their grandchildren in the way that a child’s mother and father (if married to the mother and/or on the birth certificate) do. This means grandparents have no lawful right to determine the time they spend with their grandchildren. However, there are options available to grandparents in trying to secure and formalise arrangements.
In the first instance, it is always worth considering whether specialist family mediation may assist in resolving the issues. Mediation is a voluntary process without prejudice, which encourages people to work together to find solutions to their differences. Resolving issues via mediation also avoids the financial and emotional burden of dealing with matters through the courts, which is particularly slow.
An agreement could be reached that provides for grandparents to spend regular time with their grandchildren in a way that parents and grandparents feel is in the best interests of the children.
If it is not possible in mediation to agree, you may need to rely on the court-based process and apply for a child arrangements order. This determines the arrangements for the child in question to spend time with the applicant.
To apply to the family courts, the applicant needs to show the court that either mediation is not appropriate, or that they have tried it, but it has not enabled a solution.
Our next question
My partner and I have both been married before and we had children with our previous partners. As with many other couples, we have made mirror wills, which state that on the death of one of us, everything falls to the other, and upon the second death, everything is divided equally between our two sets of children. That means I have protected my inheritance for the long-term benefit of my own children, doesn’t it?
Grandparents do not have an automatic right to make an application to the court in respect of their grandchildren. As such, a grandparent would first need to apply to the court for permission to make an application for a child arrangements order. If the court grants permission, then the application can proceed and a first hearing will be listed for the court to hear from the relevant parties.
In practice both the applications for permission and for a child arrangements order can be made simultaneously. How any such applications will be determined will depend on the facts of the case. The welfare of the children is always the primary concern of the court.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
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