Not As We Planned - 20. The Legal Queen: The Knowledge of all Things Divorce

Episode Date: November 23, 2023

Helping understand the financial battles, how to split the children and all those questions surrounding divorce Producer: Tristan Hehir City Lights by Ghostrifter Official | https://soundcloud.com/ghostrifter-officialMusic promoted by https://www.free-stock-music.comCreative Commons / Attribution-NoDerivs 3.0 Unported (CC BY-ND 3.0)https://creativecommons.org/licenses/by-nd/3.0/ Learn more about your ad choices. Visit megaphone.fm/adchoices

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So get comfy, grab a cup of tea. Or a glass of wine. And let's start talking about all the things too many of us avoid discussing. So guys, we have been so excited for this guest. And from the responses that we've got, it seems like everyone's really excited as well. So I think we get a lot of questions that we can't answer. We don't have the qualifications or the knowledge.

Yeah. It's trying to get Tracy. Yeah. So welcome, Tracy, also known as the legal queen she is a family lawyer solicitor and we're going to be able to pretty much have her answer I mean we've got so many questions we're going to try and get through as many as possible but welcome thank you so much for coming on today. Absolute pleasure excited to be here. Yeah so should we go straight into all the questions? All right. So I want to change my children's surname to double barrel to include mine, but my ex won't allow it. Where do I stand

as a mom whose children don't have my surname? So the first thing you have to think about is does dad have parental responsibility? Does the ex have PR? Because if they do have PR, then you need their permission. So check that first, because if they don't have PR? Because if they do have PR, then you need their permission. So check that first, because if they don't have PR and not every ex does, then you don't need their permission. So you can go ahead and do it. If they do have parental responsibility and therefore you need the permission and they won't give it, you need to make a court application. And what you're essentially saying to the court is, look, judge, can I have an order whereby the court get me permission to change the child's name? And all the court are going to be looking at is, well, is it in the child's best interest?

And generally having a double barreled is because it recognizes both parents. Yeah. And it's doing something like that quite expensive. Not if you do it yourself. Not if you do it yourself. And I think that the one thing that I found starting the whole social media campaigns that I do is that people instantly think that court't afford legal representation, and let's be honest, so many people can't now, you can do it yourself. All you need to do is know the forms. And that's generally where I come in. So lots of people come onto my social media and say, this is what I want to do.

What's the name of the form? And then you can download and submit it. And then the cost is just the court fee. And typically typically court fees are around the 200 pound mark for children's applications the rest of it you can do yourself okay i had no idea that i'm not saying 200 pound is cheap but i thought you were going to say like thousands two thousand no no and then the other the other thing that i try to um share with people is whilst that's the standard court fee if you are are on a low income, you can fill out what we call the EX-160, which is a fee remission.

So you may be able to get it for free. So you'd fill out your EX-160 form, send it into court. Court will have a look at it and go, yep, you qualify. And they'll just look at what benefits you are and what your income is, et cetera. So in some cases, you won't even have a court fee. Wow, that's really good to know for you. Yeah. Yeah.

Okay. If I've agreed 50-50 kid split with the dad, is there anything I can do to change it now? Has that split been put into a financial order? That's what I'd want to know. Because if it's in a financial order following the what i'd want to know because if it's in a financial order following the divorce and just to be clear for your listeners ladies when we get a divorce all that does is bring your marriage to an end the second part

of it is getting your financial order that's the most important part from a legal point of view because that's the bit that severs the financial ties so if that split of 50 50 has been recorded in an order and the order has been filled by the court really hard to change it but if we don't have an order absolutely yeah it's it's all up for the taking then right can i actually ask because i'm in the process we're both in the process at the moment of getting a divorce and I'm at that point now where we're finalizing that last pit the financial order yeah would you say and would you suggest that you should not finalize the divorce before having the financial order sorted. Is there a benefit of not or is there one completely separate? The legal preference is always let's get the financial order

while you're still married because if you get your divorce before your financial order is finalised, anything can happen. So once you're not married anymore, the laws change. And let's say the other party says, you know what? I'm not signing the financial order now. It disappears for 12 months. And it does happen. We are then on the back foot because legally we're not married anymore, but we still don't have that financial order. So the biggest or the most popular example I give is that if you get your divorce and let's say you're still 12 months sorted out the finances, you lose all that pension entitlement

that potentially your ex is paying into. But if you stay married, you still get that. So the price is to stay married. But the other side of that, ladies, is that so many people do get divorced and that's OK. We can still get the financial order. Don't get me wrong. Yeah, that's where I'm at as well. I've got the thing for you to say I can move on to the next part. It's been like 20 weeks since I filed. But our financial order is nowhere near like, yeah, we're nowhere near agreeing. So, yeah, it's really candid but would your advice be for anyone

going through that is try and get that financial order sorted before finalizing the divorce 100 100 so many people rely on trusting the ex and say you know what or the other example is we've got nothing to divide no point getting it traced we've got absolutely nothing to divide. No point getting it traced. We've got absolutely nothing to divide. When actually, five years time, you might have something. You might have won the lottery. You might have got a big payout redundancy or a personal injury payout. Who knows? Inheritance. If you haven't got that financial order, it doesn't matter how long you've been divorced, five, 10, 15 years, your ex can still come back and make a claim. So absolutely stay married, get the financial order, then get your final order in divorce.

Okay. Good to know. Yeah, I know. Close one. So someone said here, what are the key things to think about before actually starting the divorce process? What are the key things to think about before actually starting the divorce process? The key things to think about, I think generally we're sorting out children first. So when we look at finances, we're always looking at the needs of the parties. And the question one for me is always, if we have children, who are they going to live with? Because if they're living with, let's say, mum, and I say that not because I favor mums and I always get this on my social media, you're all better mums.

It's just in our society, typically children stay with mum. So if they are staying with mum, then mum by default has a greater need. So that I think is always your first consideration. Who are the children going to live with? Or is it going to be a shared care? That's fine too. And then from there, if we jump straight to what the court's looking at, we're just looking at what the assets are. We're going to throw it all on the table and then we're going to look at who needs what. Maybe somebody needs the house more than the cash. Maybe somebody wants the pension more than the house.

So we're going to try and accommodate people's want, but needs are a priority. So look at what it is that you need. And when we're looking at getting that percentage, 50-50, 60-40, the key factors for us as solicitors are, how long is this marriage? What is each party able to earn? Do we have somebody that maybe works part-time and somebody that's on a six-figure salary? Do we have any medical conditions here? Do you know what I mean? Do we have limited equity in that house? In other words, are we looking maybe to leave the person with the children in the house and we'll think about selling it when the youngest is 18. So it's about identifying what it is that you need. Maybe it's some spousal maintenance, because if you don't work,

if you are at home with the children and you're totally reliant on your spouse's income, maybe we need some maintenance for that adjustment period just to kick in so we can just let the dust settle. Do you know what I mean? And it will be different for every family. Family law, it's not one size fits all. It's very bespoke, which is why I always say to people, if you can't afford legal representation, at the very least, just try to get that one hour consultation, just so that we can say to you, this is what you're entitled to. This is what you're going to, chances are, get from court. Is there anyone that people can go to if they can't afford legal representation? Like any free advice or is there anywhere that we can point people to?

Yeah, it's a bit of a myth. So you can always get your free 15 minutes or free 30 minutes. Lots of law firms around the country will offer that, but it won't be advice. Okay. I'll come on to why it won't be advice in a second. What that will give you is signposting. A lot of what I do on social media is just signposting, just telling people where to go, what forms to use, how much it's going to cost. The reason that we can't give free advice is because as

professionals, we have insurance. So we have what we call professional debited insurance. And in order for that insurance to kick in, God forbid we give wrong advice, you have to be a client. So you have to have signed our T's and C's and chances are put somebody on account. So we would be slightly negligent to start handing out free advice because we haven't had the opportunity to ask you the questions and find out your background and the context of your divorce. So the free 15 minutes or 30 minutes will just be guidance and signposting. Right.

And people really can find that on your social media, can't they? Yeah, absolutely. Absolutely. Try not to use Dr. Google because obviously there's loads of stuff out there and there is a lot of conflicting. People get really confused. But I read this or try not to use friends and neighbours because their divorce experience and their settlement will not be the same as yours it's very bespoke yeah no that makes sense well we'll definitely if anyone listening to this is struggling financially to try to find ways of getting that advice we will make sure that we inform them as to kind of to look at your page and I've found your page so helpful for that like I'm all good I browse your page and I've found your page so helpful for that like I'm all good I browse through them when I've had questions like come up because it's it's before you get a divorce you don't know any of these things like I didn't even know where to

start with the divorce process I guess maybe maybe that could be a question is what is the first point of call to start the divorce process so So if you want to do it yourself, you would go on to Gov's website, so gov.co.uk I think it is, or gov.uk. And if you simply type in divorce, it will not only give you the divorce petition, which you can now upload online directly to the court, but it also gives you some helpful notes as to what to do and the entire process. So that's the first place to start. And you remember that you can't get your financial order that we've spoken about until you've started that divorce process.

A lot of people say to me, we've separated, but we don't want to get divorced for lots of different reasons. But can we sort out the financial order not really you have to start that divorce process okay because it we can't have the financial order if you're still married you see what i mean so yeah it just won't come into effect until we've got you divorced and the divorce now that you can do online, how much is that? It's something like £5. So yeah, the court fees £593. Again, check if you're entitled to fee remission. That's the EX-160 form. But yeah, if you're not, then it's £593.

And that will be payable by the person that completes and submits the divorce petition. A lot of people say to me, oh, can we share the cost? You can, absolutely, because you can do a joint application for divorce but ultimately one of you is going to have to pay and then get the 50 from the other person if you do a joint application yeah is there a way for it to be split or still someone has to pay it and then if the other one agrees they can transfer you half the money so typically because you're dealing with computer, it's going to want one person's card details.

Yeah. So what you find is that one person will pay and then the other person will just give their 50% to that person. Fine. Yeah. This might be a bit of a hard one to answer because it seems quite vague, but this person's put, is it better to sell the property or let him buy me out of our family home so it depends on the needs doesn't it so if he can afford to buy you that's going to be the starting point if he can afford to take on the existing

mortgage and then take on your 50 percent of the equity then fine if he wants to stay there but if he can't afford to do all that his income won't allow him to get all of that on his own, then the property is going to have to be sold ultimately. You have a right to get your share of the equity. And as much as they may want to stay, a lot of times the other side, I'm thinking about my clients, the other side itself, yeah, but I love this house and I want to stay. Yeah, but if you can't afford to buy my client out, then that's a consequence of divorce, I'm thinking about my clients the other side itself yeah but I love this house and I want to stay yeah but if you can't afford to buy my client out then that's a consequence of divorce I'm afraid when it comes to selling a property that you're both on the mortgage you both own it together

yeah does the split when you sell it tend to be different depending on who has the children law Well, it tends to be different depending on who has the children more. Absolutely. Absolutely. If we take the typical scenario that dad is working full time and mom isn't working, and we've got a couple of children that are maybe still at primary school, we're going to be moving away from 50-50 and looking at potentially getting mom 60-65%. I mean, there are other factors that we take into account. And the reason for that, and I get all the dads on my social media going, well, that's because the court favors women. And it doesn't. The reason for that is that if dad is working full time, he's got a much better mortgage capacity. He could go out and get a much bigger mortgage than mom.

It may be that mom can't get a mortgage at all. And I say mum and dad, not because there's a favouritism for women, and I always repeat myself, but it's because in our society, typically it's the mum that stays at home with children. In other countries, it may be different, but I speak about sort of England where I practice. So yeah, there is a definite shift in favour of the person that has the children, but for good reason, not because court favors that person. Yeah. Makes sense. Someone's put here, child maintenance is not enough for what we need. How do I get him to pay more? Well, the CMS stays firmly outside of family court. So we would never go to family court

in respect of child maintenance. If we need a top-up, then we're going to be looking at what we call child periodical payments, but it has to be specifically for something. It may be that we're looking at spousal maintenance. So not necessarily a maintenance for the child, but for the spouse. So again, that's based on need. Like I said earlier, everything's based on the needs of that particular individual. So if again, we take the person that has that financial need, we look at what they've got coming in, adding up any part-time wage, child maintenance, benefits, or whatever, then we look at what they have to pay out. And that deficit, we're going to be asking the other side for. Now, that's the

first part of it. The second part is, well, can the other side afford that? Because obviously, they have a need, they've got to pay their bills and they've got to get themselves to work, etc. So, we would hope that the deficit can be covered by maybe a spousal maintenance. But if it's a specific payment, maybe it's a private school fee, maybe it's dance classes or stuff that the child's always done, then we can say to the other parent, well, we've always done this. So would you be able to maybe pay half of that for me? And we call that periodical payments for the children. What happens if when you're organizing the financial order, it's based on my ex's salary,

but then their salary is going to increase over time? That depends on how long that maintenance is going to be payable for. If we're talking about maintenance, and we might not be, but I'll roll with maintenance because we've just had a maintenance question. If we're talking about spousal maintenance and we agree that's only going to be payable for say two or three years, and that increase happens within that two or three years, we build that into the order. Okay. Because we know about

that. We know about that information, but we've got to weigh that up against the need. It always comes back to the need. So if your needs are 500 pounds a month and your spouse is paying that to you, does it really matter if the income of the spouse goes up? Because your need is still being covered so again i'd need to know a little bit more context about as that goes up are we then going to be entitled to more are we going to index link that or is it that actually our basic needs are covered as part of really no that's really interesting so so in, just say as two people are getting divorced and they've got children and the dad is on a particular salary. Yeah.

And they've agreed, this is how much you'll get him because this is how much you are going to need for the children. But then as the years go on, and obviously he's only going to pay that amount until the last child is 18, as the years go on, his salary increases, increases, increases. Does the mum not see any of that increase because her needs are already being met?

Is she not entitled to those increases? She will see an increase in the child maintenance because CMS, the CMS guidelines, yeah, it's a percentage. So from the child maintenance perspective, it will go up. But whatever is in your financial order, if we haven't built in the opportunity for growth, then no. What I mean by that is if in our financial order, we don't recognize as dad's income goes up, so will our maintenance, then no, the financial order will set it in stone.

So the listeners out there that are in exactly that position, speak to your solicitor. position, speak to your solicitor. Because the first thing I'd be thinking about if one of my clients said, and he's just about to get a promotion and his salary is going to go from 100 grand to 150 grand, first thing I'd be thinking about is, well, hang on, his mortgage ability is going to increase. So actually, maybe I don't want to link in increasing maintenance for my client, but maybe I could justify getting a bigger portion of the equity in the house because my girl needs that right now, whereas his mortgage capacity is about to double in the next 12 months. Do you see what I mean? And that's why it's really bespoke. That's why you just need to go back to your solicitor and say, just flagging it. We might not be able

to do anything with it, i do know promotions looming that happens quite quite a lot but like say for example someone is self-employed and someone has a job that they are definitely like going to get promote like they're going to get promotions obviously the person who self-employed has less mortgage capacity yeah So you could tie that into the financial order. Potentially, yeah, absolutely. But potentially, because your argument before the court, if you are in, I always use the court as an example, is that their mortgage capacity is going to increase quite quickly, quite soon within the next sort of six to 12 months. So therefore, can we recognise that now? And could we have slightly more of the equity?

Yeah. You know what I mean? There's a potential there to run that. Yeah, for sure. The other thing to remember as well is that if you have child maintenance built into your financial order, once your financial order is 12 months old, the CMS element drops off. So what I mean by that is you can still go back to CMS and have them recalculate your allowance. Okay. That make sense? Yeah. Yeah. No, that's good to know. My ex-husband is trying to for sale a marital home, but I'm not in a position to do that. Youngest child is four, what are my options? So whenever we are dealing with finances on divorce, the three areas that

we're looking at is housing needs, income needs, and capital needs. So if by selling that property, mom and child have nowhere to live, there's no way the court's going to make that order because the order has to be fair and it has to be reasonable so a lot of times whilst the ex is making an application for an order for sale i'm always saying to people don't be intimidated by that anybody can make any application the the real question is, will that application succeed? And if it means that her and the child are out on the streets and they can't afford rent in the area, or for example, a lot of people in London, even if they sell their home, they just can't afford to rent. Kids are having to move schools and all sorts of, you know, stuff's going on.

Court's not going to make that order. So, you know, she, at the moment, I would say she doesn't have to do anything. Take some advice, obviously, but there's no guarantee you'll get that order for sale. Okay, that's interesting. Do you have a right to say as a mum, if someone isn't allowed to see the child, not their dad, but a relative to the dad? Yeah, because you have parental responsibility as the mum or if it was the dad and you can exercise that parental responsibility by saying, I don't think it's appropriate for my child to be in that person's company for whatever reason. abuse or there might be foul language or there just might be welfare concerns so absolutely you can you can um now remember what the question i get a lot of times is um well my ex is now with

a new partner and i don't want my kids i don't think it's with a new partner while the children are with your ex-partner remember that they can also exercise their parental responsibility so if they feel inappropriate you kind of have to let that one go. Do you know what I mean? Unless you've got genuine welfare concerns, then of course, you could step up. Husband is the only one named on the deed, mortgage bills, etc. What is the percentage split when we divorce? It doesn't really matter who is named at land registry or on the deed. And if it's one person, what I would say to the person who's not named is make sure you register your home rights. And that's a HR1 form.

So what that does, it tells land registry that I'm not named on the deed. However, I am a spouse and this person cannot sell the property without me being informed. So it will effectively block a sale. That's the first thing. The second part of that question was, what percentage split am I going to get? Well, that will depend on the needs of the parties. So that's going to depend on earning capacity, length of marriage, age of the parties, et cetera, et cetera. So the percentage question isn't tied into who's named at land register i suppose that's what i'm trying to say what's the cheapest way to get divorced if you cannot use legal aid and finances are tight well legally you're not going to get legal aid for divorce anymore so um legal

aids uh in family law sort of got rid of it and about 2013 to 10 years ago the only way you're getting legal aid, and for those listeners that don't know what legal aid is, it's free legal help essentially, is where there's been domestic violence involved. So if you are purely getting a divorce and we've got no domestic violence, the cheapest way to do it is to do it yourself. You can do it all online.

Last April, so April 2022, we saw the new divorce laws coming in, the new no-fault divorce. Do it online. The court will send the divorce petition to your spouse. They can complete their little bit online. £593 is the court fee. Unless you qualify for fee remission, check out that EX-160. That's the cheapest way to do it yeah okay is it

important to get divorced separated two years and can't really afford it at the moment with two young kids in my opinion it's just a piece of paper what are your thoughts so legally you are still married and if we think about when we get married, we are entering into a contractual relationship. So what belongs to you actually belongs to your spouse. And in the site, you know, when we're getting a divorce and we're separating it, regardless of whose name it's in, we've just spoken there about the house being in one person's name, that doesn't matter. You're still going to be entitled to a share of it.

So that continues, you know, because if you're separated, you're still going to be entitled to a share of it so that continues you know because if you're separated you're still married so if you're paying into a pension every month even though you're separated and you're not living together legally your spouse could claim half that pension so i would be saying that whilst you may be struggling to afford the court fee for the divorce, long term, is it actually costing you more? Do you know what I'm saying? Yeah. Like if someone went and won the lottery, you're entitled to it, aren't you?

Matrimonial asset, potentially, you could argue. Now, to get into the nitty gritty, it's a post-separation asset. But if someone's got a need, we can certainly make a claim to that lottery win, for sure. What's the law on taking your children abroad if you're not married to their father or you're not with their father? So the marriage bit isn't relevant at all. If dad has parental responsibility and you don't have a child arrangements order, and I'll come back to why that's important in a second, you're going to need his permission to take the child abroad.

Also, give some thought to where you're going. So some countries you can literally walk through, Spain, France, you know, whatever, you can just walk through with your child's passport, that's fine. Other countries want to know why you're travelling alone. Have you got a letter from the other parents always check where you're going and what their entry requirements are but if the if your ex has got pr you know out of sheer courtesy i would be saying look planning on going on summer holiday blah blah if we've got a child arrangements order in place and the child, by way of that order,

lives with you, you can actually go on holiday for up to four weeks without the other parent's permission. And that will be written in your order. Okay. So that's a given. So it might be that you have an order, in which case you can go for up to four weeks. If you don't have an order, I would be getting the other parent's permission. And look, if you can't get the other parent's permission and they force you to go to court to get an order to go on holiday, no judge in the land is going to say you're not going. Of course you can go on holiday. Do you know what I mean? Yeah.

But as I say, always check where you're going as well. Yeah. Yeah, I did. I got a letter both times. Oh, did you? Yeah. Well, just in case. I just thought. Just in case. Yeah. Yeah, it did. I got a letter both times. Oh, did you? Yeah. Well, just in case. I just thought. Just in case. Yeah.

Yeah. It was fairly easy to do. And I just thought, like, going on holiday on my own, two kids gave me anxiety anyway. I thought the last thing I want to do is get there and be like, oh. I didn't. I did not think of that. And that's interesting because you had your letter. You were all prepared. Did you get asked for the letter? No. not once. No. Yeah, that's it, you said. Where other countries, they will stop and say, why are you travelling alone?

Have you got permission in a court order? So it does depend on where you're going. Can they sometimes, if you're like, oh, I don't have anything, can they sometimes say, well, sorry, you can't go? Absolutely. Absolutely, yeah. I went away and I didn't even think to get anything. So my understanding, and again, I'm not a specialist in border control,

but my understanding is that you can leave England. The border control won't stop you from leaving. It will be the entry requirements of the country that you're going to. If we're not married and we've lived together in his house, do I have any rights if we're now separating? Only if you've made a significant financial contribution. Okay. So always think of it as rent. If you're paying your way, if you are contributing towards the food and half of the bills, et cetera, then no, because you're not married. But if maybe you've paid for central heating to go in or new windows to be fitted,

or maybe you put 20 grand towards the extension that he had on the side of the kitchen or whatever, if it's a significant financial contribution, then yes, you could claim what we call the beneficial interest. Right. And you know what? That's really important. I'm glad that you asked that question because marriage is on the deep line. More and more couples are simply living together. And a real live example was a client that I had. Relationship had been 22 years i acted for mom there was five children of this relationship and for the whole 22 years they lived in his house she had decorated it nested made it her home the relationship broke down and she walked away with absolutely nothing because she hadn't made a significant financial contribution.

So it's so important, regardless of being male or female, if you've won living somewhere long term and that property isn't in your name, think about that. Think about how you fix that. And I know that people don't want to think about if the relationship breaks down. It doesn't have to break down. That person could pass away. You're still not entitled to that property, even though you might have lived there for 30 years. And it happens. I think that's the thing. If you're not aware that these things

happen, you automatically, we all do, you just think, well, it never happened to me. I thought it was more about how long you had cohabitated for rather than what money you had put into something and you know what that is the biggest family law myth I did a video recently I was on holiday a couple of weeks ago and I did a video and it was somebody said to me what's the you know the most common myth and it's that that we have this common law man and wife you know this magical world where if we've been living together for 10 years then we're just automatically common law man and wife, you know, this magical world where if we've been living together for 10 years, then we're just automatically common law man and wife. And it's not true.

I'm assuming there has to be like proper evidence of that. Yeah. By natural contribution. And it has to be significant. It can't be like, you know, 500 quid or a thousand pounds. It's got to be significant. It's got to be a contribution that actually puts value on the property. Yeah.

Okay. So the examples I give is by paying this, are we going to increase the value of the property? Are we putting in a new driveway? Are we putting in new windows? It's got to be a significant contribution. So it can't just be like the air con. No.

I think that's a very significant contribution in this in the summers that we're having I know that I mean that is really interesting and I don't want what I'm about to ask you for anyone listening to think it sounds like going into a relationship almost planning well if this ends but would you say for those reasons it's safer to get married look I mean I do this job all day every day so I always see the negative I'm doing divorces I'm seeing people that break up so I have children you know and when they get into relationships and start buying property, I am going to be there with the safeguards ready because with the best will in the world,

it happens. And it's not that you go into it thinking it's going to happen, but in the case that it does happen, you've got to protect yourself. You know, it's an investment that you're making, a financial investment. You're investing your time there has to be some safeguarding you know let's not be that naive to think that it may never happen yeah to me you know it might and you know what if it doesn't what harm is it if the relationship doesn't break up that's fine you just shove whatever your contract you've got

shove it in the drawer forget about it okay so what you're saying that you would almost put like a contract in place when you buy a property if you're not married. Absolutely. So they're called cohabitation agreements. And we would put a bit like having a prenuptial agreement, but it's a cohabitation agreement. For the property. Well, for the couple. So in the event the relationship breaks down, let's be very clear about what we're both walking away with. And the contract or the agreement also covers what we're going to put in while we're together.

So we might get gifts given to us, you know, joint gifts, Christmas presents. That's maybe, I don't know, a new dining table or something. If the relationship breaks down, who's keeping that? What are we doing then? What's happening? What if we start to take out a credit card debt to go on a holiday and then we split up and the credit card hasn't been paid back who's going to pay that back so it will cover things like that things that you might not

automatically think of and what did you say that's called cohabitation agreement okay i think that's really helpful yeah okay this is an interesting one. We're not married. One salary family. He insists that the kids should live with him because I don't have a job. Then how? Right. I think the first question there is what's in the children's best interest. So what's been the routine, first of all? You know, when we were together, what was the routine? Even though we're all living in the same house, who was the main carer of the children? I guess it's going to be her if she's not working.

So we have to start there. Like it's already a bit traumatising when mum and dad aren't together anymore for the children, I mean. And to then shift them from their routine, which legal speak is status quo. So that's got to be your starting point there. What is the best routine for the children? And then once we've got that decided, the finances almost just slot into place then.

Do you know what I mean? Because then it's really easy to identify what needs we have, what needs does the parent have who has the children, and what needs does the other parent have? So start with the kids is what I would say first. Fine. What are your thoughts now on this whole non-fault divorce? Do you think it is better?

Yeah, I think we needed it for such a long time because before we had the no fault, we had to pick one of five and they were two-year separation. Well, that didn't apply to everybody. Five-year separation, that didn't apply to everyone. Desertion, that was very rarely used. Adultery, trouble with adultery is you had to get the person that committed adultery to sign to say that they'd done it. So that was really hard.

And then unreasonable, I know, can you imagine that? And then unreasonable behaviour. So that was you imagine that? And then unreasonable behavior. So that was our most popular one. What, the unreasonable behavior? The unreasonable behavior, yeah, because if it was adultery, we would say that the other person had had inappropriate relationships. Do you know what I mean? We couldn't use the word adultery.

But the downside of that unreasonable behavior is that already we've got the parties at like logger that already we've got the parties at like loggerheads before we've even sorted out the finances. Look, you know, divorce is divorce. The reasons that we would put in the petition were seen by nobody. It was seen by your lawyer and the judge. But did it really matter? Because the biggest, I suppose, culprits in all of that

were those that simply fell out of love with each other. They had no basis. They then had to wait until they were separated for two years. How fair is that? They want to move on. They want to sort out the finances. And you've got lawyers going, well, unless we make up some stuff, unless we, you know,

unreasonable behaviour, was it unreasonable? I mean, I'm not saying we'd make stuff up, but do you know what I mean? If you think of anything that they've done in the past that we can use, it was really hard. Now, if you decide you want to get divorced, fine. You know, who are we to question? Your marriage is irretrievably broken down.

It's a decision for you both. Then let's just move on. We're not going to apportion blame. How is that helpful, I helpful i think yeah that's so true i never really thought of it in that way i think i saw it as like a bit of a negative for someone that was maybe pushed into getting a divorce because their partner had had an affair and then they weren't seeing any benefit of he's had an affair so i'm gonna be able to say that i want x y and z because it's his fault that's how I saw

it I never really knew yeah and when the new no fault came in you did have those people that said that's so not fair I want to use adultery I want to blame him or her for the breakdown of the marriage but two things to remember there that's anive response. That's how you feel in the moment. No one's going to know. You know, when you're chatting to friends, you say, I'm divorced. People never said, what grimes was it? You know what? You just, I'm divorced.

That's fine. And the second thing, and more importantly, we don't use conduct when we're sorting out the finances. So it really doesn't matter how horrible your ex has been it won't influence the finances the finances will always be based on what do the what we've got available and what do they need how can we best service housing income and capital and you know what i didn't know that i i think i'm so you know you watch these films like these old films back in the day and you see like the ex-husband and wife sitting in the table with their like

solicitor next to them and they're like she wants the house because you did this and he's like fine she can have it I think I just always like envision that that's kind of like what divorce was like you know he's done that so she gets this but it's obviously of like what divorce was like. You know, he's done that, so she gets this. But it's obviously not. What influences that is that a lot of those dramas or movies that we see are American-based. And in America, it's very different. So in America, yeah, yeah. Children is part of the whole divorce scenario,

whereas in England it isn't. And I think conduct is taken into account. Okay. That's all those American triplets I've been watching what are you watching I don't know and two really good questions that have just come up so how to sort a divorce when we're still living together but leading very separate lives now how do we sort finances etc you can still sort it out. I mean, and that's more common than people think because where we just have one property and we can't afford to move out one person to move out

and rent somewhere else, we can still put the financial order into place. We can sell the property and build into that order. When the property sold, you get 50% or you get 60% or whatever it might be. So we still do it. Lots of couples will maybe take separate bedrooms and do the paperwork while they're still living in the same property. It's possible. And if that's your only option, you find a way to make it work, really. Legally, it has no bearing on the legal side side of things not at all okay yeah i don't

think i could do that i think i'd lose my mind right um can my ex-husband enforce a 50 50 split of children's time can he enforce it that tells me that there's already an order in place that's being breached and he wants to enforce it. Or if she's saying, can he make me? I reckon then can he make me? has been throughout the relationship and what it's been maybe post-separation. If it's not in the children's best interest, then no, he would make his application to the court. But again, the magic question is, will his application succeed? And if we're veering away from the routine, it probably won't succeed. So is that what it generally comes down to?

It's kind of like what have the children been used to while the parents have been together? Absolutely. That's interesting. Now, there's a lot of parents that will say, we've completely agreed on a shared care arrangement and it's going to be a 50-50. That's fine. The court won't interfere.

If parents are in agreement, we have what's called the no order principle. So the court won't make a child arrangements order. Why do they need to? Parents are in agreement, that's fine. It's where the parents aren't in agreement and the matter comes before the judge. Obviously, it's going to be very biased. Dad's going to have his view, mum's going to have her view. So the judge is always focused on, okay, what has historically, what have the children been used to? How should we continue that? Right. I have a question for you. What are your thoughts on mediation? I'm a big fan of mediation. A big fan. I think as soon as solicitors get involved, there's a tendency to polarize your

position. This is my position. I'm very entrenched. These are my legal rights. This is what my lawyer has told me I'm entitled to. And it can make negotiation a bit more difficult. Whereas mediation approaches it, well, what is it that you're looking for? What is it that you're looking for? And I'll tell you what else mediation does, which I think is really important. When we come to the end of a relationship, it's really hard to hear what the other person is saying. Our perception of what they mean can sometimes be distorted. So I think a good mediator will say to the other person, I think what he's trying to say is this.

Or I think what she's trying to say is this and they will almost try to neutralize that emotion that's in the air and thereby facilitate the agreement generally so i'm a huge fan of mediation okay if you were only married for five years do they have a claim to your pension yes so the law around pension is really clear all contributions made during the lifetime of the marriage will be divided. So whatever contributions have been made. Okay, so I know we've kind of touched on it, but someone said legal rights of children remaining in the family home until 18. So the children don't have any legal rights to remain in the home. That decision remains with the adults the adults

are responsible for housing the children the children don't have a right to the property if that makes sense because they're under 18 so yeah how would they what happens if as the children get older and you've obviously got this agreement that the kids are at their dad every other weekend and one night in the week. And then as they get older, they don't want to go. Is it just then tough on the parent, not the kids? Yeah, it really is. Because when they get to sort of, you find it when they get to 12, 13, 14, they start to vote with their feet. They're far too busy.

They want to be out with their mates. They want to be playing computer games in their room. They don't want to do this whole going to dad's at the weekend and everything. Child arrangements orders will only go up to 16 anyway. So after that, it's, but if you were to be making a child arrangements application, the child's 14, chances are the court's going to be guided by what the kid wants to do then. You know, they will listen to the voice of the child that doesn't mean the child goes to court that means that cascas who are kind of the court social workers will speak to the child and report back to the judge look you know

he'll see dad when he wants to well she'll visit mom when she when she wants to right and what if your agreement's been put in place when the children are you know like that four five years old and then once they get to that 10 11 12 they're a bit like mum i don't want to go to dad and if they then don't go does the dad have the right to do something about it legally yeah so illegally you're breaching the order okay okay? You're not allowing the children to go for contact, is what Dad would say. Yeah. He would enforce that order. He would say, look, Judge, I got an order six years ago. It's not being affected, and I want it enforced.

But, of course, that would trigger an investigation. So, the court would probably send CASCAS out, again, groups and social workers, to have a chat with the kids and say, what's going on? And then if the kids were like, well, I want to see my friends or I want to do this, I want to do that, I've started rugby or football, I've got time, then CASCAS would feed that back to the judge. So there'd be no guarantee that the court would actually enforce

that old order because the children have outgrown it. Yeah, makes sense. Yeah. School holidays and how to divide this evenly if both parents work. Again, very bespoke to what the family needs. You know, typically we can't afford to take three weeks with one parent and three weeks with the other because one parent might not be able to take three weeks off work, you know, all in a row.

Or you might not be able to afford the childcare. So again, what is in the best interest of the kids and what can the parents agree between themselves? Every family is going to have a different scenario. Sometimes we have grandparents getting involved because actually we need grandparents' support or aunties and uncles' support during the summer holidays because both parents are working, you know? Yeah. If your ex isn't contributing at all financially since they left, can you one... Oh, no, she's done the thing again.

If your ex isn't contributing at all financially since they left, can you go for more than 50% of the house? I'm paying all the mortgage and everything for the kids. So first question, I don't know if they're married. If they're married, then we can start talking about percentage of houses. And then it comes down to need. What is it that you need? If they're not contributing financially, is it worth us going to court getting an order? Because whilst we can get an order for spousal maintenance, for example, that they pay you 500 pounds if they don't

you've got to enforce the order so you're just trotting back to court all the time so maybe the better remedy there is forget the spousal maintenance i'll just take more of the equity in the house because actually i can't rely on you long term to keep paying me but it always comes back to need what is it that they need? Yeah. So if she's got the kids pretty much all the time, then their needs are going to be greater. Greater. Yeah. Yeah, absolutely.

I remember a lot of the time I've had a lot of messages, just generally like when we share a lot of what's the divorce and everything on our Instagram pages, I do get a lot of people saying things like, my ex just doesn't give me any money like how is that allowed to happen like is that just because they haven't put something in place legally yet or even if there is something legally in place can someone just not pay yeah yeah and and you know what that's's the sad reality. Child maintenance can make

provision that he has to pay or she has to pay a monthly amount. If they don't, we have a remedy. CMS can get what we call an attachment to earnings order. So we go to the source, that person's HR department, then pays the tax, pays the CMS, and then gives the person the balance. But what if they're self-employed? What if they get paid cash? The sad reality is we can't force anybody to do anything. We can get orders that they pay us 500 pound a month, but if they don't do it, what can we actually do? So if you find that you're not able to trust the other person or they're unreliable or they're in and out of work, look for another remedy. Don't try and force that rabbit down that hole because it's not going to work. We know that. And other remedies might be, we just take a bigger

share of the savings or the ISTA or the equity in the property. Now, if we don't have any of that, then we don't really have another remedy. There's nothing more we can do, which is a bit sad. That doesn't happen that often, but it does happen. It's interesting to know that you can have it taken out of their wages if they're employed. I do that. I had just a question I thought of because I get asked a lot.

I get a lot of messages to say, you know, they love listening to the podcast and they've been miserable and they really want to leave and get a divorce. But the financial side of it is holding them back and they're terrified of how they'll make things. Yeah. Yeah. What would your advice be to someone in that position? There will always be an out.

Always. You just don't know it yet. So that's why I say, if you can afford nothing else at all, get the money together to just have a one-off consultation with a solicitor, because I guarantee you, once you know your options, you'll be able to find that out. There's always an out always you know i get people coming onto my discord and going right trace this one's a bit complicated and in my head i think i guarantee you it won't be complicated it's just that they don't know the option yet they don't know the out but once you know it it is scary 100 because you just think oh my god i'm trapped i'm completely trapped i don't earn i've got nothing in my name i've got nothing

in the bank that's me done but that's not the case because you are always going to be entitled to something something you know you can't be forced to stay with somebody that you don't want to be with anymore but they'll always be announced always yeah and it's sad because I feel like that's probably what we hear the most of why people stay yeah it is that financial like fear of I I don't work and so I can't afford to be with my kids on my own so they just stay in unhappy marriages or relationships that's true because of that and yeah we've always said like it's so annoying we sort of want to be able to give this advice and be like no no no like you can you just need to do xyz but we haven't been able to really like give that advice because we haven't known what to say yeah there will always be an out always and you know the main reason that I started to do the social media was what I found. And it just, it really frustrates me is that people think that

lawyers are so unapproachable and they can be really intimidating. You know, when I started this, the amount of DMs I'd get, they'd be like, oh my God, I'm just so scared to go and see a lawyer. They're going to be so expensive. They're not going to understand me, blah, blah, blah. So when you're looking down that black hole that nothing's in my name, I don't work, the house isn't in my name. And then you think, well, the remedy is to see a solicitor. Oh, my God, no, I can't walk into a solicitor. I've got no confidence. You know, I don't even own anything smart, aware or whatever, because they have this image that it's intimidating.

We've got to sort of break down those barriers and help those people that just feel so trapped in all of that there are so many options and honestly the times that i'll speak to people and do a consultation at the end of it they'll say to me oh my god i feel so much better now you've literally lifted a weight and i haven't done anything i've just given them options that's it i've given them an out. Do you know what I mean? They have that little bit of knowledge now. Yeah, that's really nice. So we thought that we'd end the episode

asking a question that I'm sure a lot of people will want to know is what would you say is probably the most common cause of separation or divorce that you get from clients number one would definitely be adultery and then number two would be financial the other person has just spent or got into debt or yeah but number one is definitely that double life scenario having an affair um that is just so so common and people find out it's crazy how common it is i mean i know since we've certainly started this i literally feel like it's on a daily basis the

amount of yeah come out and been like i found out today like and my husband's been needing a double life i think yeah before we went through what we've been through, you don't realise this whole other horrible world going on. But I suppose you live and breathe it and see it all the time. And I obviously don't want anyone listening to this that's in a happy marriage thinking, oh shit, better go and check my husband's phone. We very much also know that there are great yuppie marriages yeah just yeah i guess it's one of those things isn't it and maybe it's also the world we live

in now with the access with social media and i think so that that's always been my theory it's just far too easy social media has absolutely absolutely yeah yeah but there we go thank you so much for your time it's my pleasure i thoroughly enjoyed that like for me i literally feel like you've answered so many questions that have been like going around in my head i'm sure like as well loads of those questions that we get asked and we're like we we don't know we're not yeah we're just experiencing this journey ourselves so but we will absolutely like anyone that is listening watching make sure you go and follow the legal queen on instagram and tiktok it's amazing so so helpful thank you so much for your time thank you for what you're doing it's really valuable

really valuable thank you so much thanks for your time tracy all right then see you later bye