ABC Law Firm,
7 July 2016
Reference : Meeting on 1st July 2016 at the offices of ABC Law Firm, Surrey.
Dear Mrs Paula Brookham,
As per the meeting and discussion that we had on 1st July 2016 at our offices, we are setting out our legal advice for your situation in this letter. As we had a detailed discussion on the situation you find yourself in your marital relation with your husband, we are able to consider the legal issues that are involved and the steps that can be taken to resolve the situation that you find yourself in.
I have set out below the advice I gave you at our meeting at our offices on the 1st July 2016. During our discussion on the said date, you made it clear that you intend to seek a divorce from your husband, Mr. Donald Brookham. In this letter, you will find the statutory provisions and the law that will have a bearing upon your situation and petition for divorce, should you seek to make it.
The current law relating to divorce and the conduct of it, is contained in the Matrimonial Causes Act 1973 (MCA 1973). This law provides the grounds of divorce and other conditions and also lays down the procedure for making the divorce petition.
During our discussion, you let it be known to us that your husband has suffered from depression and anxiety due to his military career and has even expressed suicidal tendency. This behaviour amounts to a situation that you may find unbearable to live in. The statutory law, that is, MCA 1973 mentioned above does have some provisions that may provide respite to you, should you press for a petition of divorce.
Behaviour of a spouse of such nature that the other spouse cannot reasonably be expected to live with them is ground for divorce in the the MCA 1973, s.1 (2) (b). Here the applicant needs to prove the following: (i) the respondent has behaved in a certain way, and (ii) on this basis the applicant cannot reasonably be expected to live with him/her. Although generally, a series of such actions or the course of conduct is seen as justifying the claim for divorce, in certain cases, the court may even see a single incident as sufficient cause for divorce.
Generally, the question that the court asks in such cases is, “would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the character and personalities of the parties”. 1
It is important for us to note and understand that even where the behaviour of the spouse is unintentional or if the spouse is ill or sick, the other spouse would still have a ground for filing the divorce petition. 2 Therefore, it is not necessary that the offending behaviour of the spouse be intentional.
In your case, you have informed us that your husband’s depression and suicidal tendencies are a continuing pattern of behaviour. Your husband has been aggressive and depressed. In fact, as you informed us, during the last disturbing incident, your husband pushed you and this resulted in an injury to your head. This amounts to physical abuse. As we have noted earlier, your husband’s depression or medical condition cannot excuse this behaviour to the extent of giving him a defence against a divorce petition.
A dissolution of marriage involves many matters of practical and pecuniary nature as well. Matrimonial and non-matrimonial property has to be identified and the division of such property has to take place. 3 Generally speaking, matrimonial property is the property that one party brings into the marriage or acquires by inheritance or gift during the marriage. All else is non matrimonial property.
The court may make a decree of divorce, a decree of nullity of marriage or a decree of judicial separation. At this time, the court will also have to make appropriate financial provision order. 5 Therefore, the two bedroom property worth around six hundred thousand pounds (£600k) inherited from your mother fifteen years ago and rented out for twelve hundred pounds a month, may be seen as matrimonial property.
The first concern is that both of the spouses should have somewhere to live. The MCA 1973, s.25 lists down some factors which the court will take into consideration. The first consideration for the court would be the welfare of nay minor children. One of your three children falls into that category, being 14 years of age. The welfare of this child will be of paramount importance to the court. 6 These orders may include order for periodic payments by one spouse to another; an order for lump sum payments by one spouse to another; periodic payments or lump sum payments for the benefit of a child. 7 The court may also make orders related to sharing of pension, if any.
It is important to note here that the court will have consideration of certain factors when making such orders. These factors are mentioned in the s.25(2)-(3) of the MCA 1973. These
factors include the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, the standard of living enjoyed by the family before the breakdown of the marriage, the age of each party to the marriage and the duration of the marriage, the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.
With respect to your situation, as a midwife when you were married, you had prospects of higher earning in future. But you gave up your job when you had children as Donald had to travel extensively as and when required to by the army. Moreover, despite your best attempts, you could not hold on to jobs in the different locations where your husband was posted, due to language constraints and child care commitments. Now you have started a new job, which pays you 800 pounds a month. It is definitely not enough for you to sustain yourself and your minor child. Comparatively your husband earns 6000 pounds a month and also has savings of 60,000 pounds. Additionally, he has a pension of a million pounds. The courts apply a ‘yardstick of equality’ in cases of dissolution, where the emphasis is on balancing the interests of both the spouses in the property in an equitable manner.
As per the provisions of the MCA 1973, you are entitled to financial provision order that takes into account all the factors that are mentioned above. Accordingly, the court will consider the standard of living you are accustomed to, the contribution made by you for the welfare of your family, earning capacity (present and future). Based upon these factors, the court will make the order at the time of granting decree of divorce, or judicial separation, as the case may be. During the period of pendency of the suit, the court may also make an order for maintenance pending suit.
With respect to your minor child, the court will have to consider custody issues. The court will generally make a Residence Order with respect to one parent and a Contact Order for the other parent. The Residence Order settles the question of where a child will live and the Contact Order gives the absent parent rights of contact with the child. The court will not deny contact to the parent unless there is a very strong reason for doing so. Such cases are very rare and exceptional in nature.
The procedure of the petition of divorce is now explained. First, a Notice of intention to proceed (Form A) is to be sent to the court with a copy for service, court fee, notice of acting (solicitor), notice of issue of public funding certificate (if it is), copy of public funding certificate for the court record (if issued), and cover letter. The court will serve the other spouse with the notice within 4 days of the filing of the notice. The court will insert on the Form A the date of first appointment, which is given during 12 – 16 weeks from this time. Both the parties have to attend the first appointment personally. The next hearing will be for financial dispute resolution. This also has to be attended by both parties personally. After this hearing, the final hearing will take place.
We have attempted to outline the principal legal aspects concerning your situation, should you press for a petition of divorce. We have also broadly outlined the procedure for making the petition and the main steps from the making of the petition to the final order of the court. Should you have further questions or require clarification on any issue, we will be happy to set another meeting and assist you.
Our Ref: 23/BBR
Date: 4 July 2016
Abdul’s estate at the time of his death is likely valued at £650,000. As Abdul has died intestate, therefore, the distribution of his assets amongst his surviving heirs has to be done as PAGE 9 per the provisions of intestacy. There may be several claimants to Abdul’s estate. This report deals with the legalities of such claims.
If a person does not leave a valid will then the Administration of Estates Act 1925, specifies who is entitled to inherit that person’s estate on his or her death. It is important to note that the rules of intestacy only apply to property which is capable of being left by Will. They do not therefore apply to joint property which passes by survivorship, nominations, life policies written in trust, or to the subject matter of a donation mortis causa (death bed gifts). Apart from a spouse, the rules of intestacy only benefits people who have a direct blood link with the deceased. It does not therefore, benefit unmarried partners, parents-in-law and stepchildren.
Abdul has not made a will, therefore he will be considered to have dies wholly intestate. The rules for devolution of the estate are laid down in Part IV of the Administration of Estates Act 1925. The Administration of Estates Act 1925, s.46 provides the rules related to succession to real and personal property on intestacy.
Rita and Abdul were married for 25 years. They were separated at the time of Abdul’s death. Under the rules of wholly intestate estate, the spouse occupies the position of primacy. However, if the spouse is judicially separated, then there is no right in the deceased’s estate. 12 The separation has to be judicial. In the present circumstances, although Rita and Abdul are living separately for the past 6 years or so, it is not clear whether that separation was judicial or not.
In case the separation is not judicial, then Rita will be considered to be the surviving spouse. However, she will not be the sole inheritor of the property as Abdul also has three surviving biological children- Paula, Ainsley and Dickie. Rita can claim all the personal items including cars, books, jewellery and household items. Since 2014, a surviving spouse also gets absolute interest in half of the estate. For deaths occurring prior to 2014, the spouse got only life interest in half of the estate. These changes have happened under the The Inheritance and Trustees’ Powers Act 2014.
Rita can claim up to £250,000, and all the personal possessions, whatever their value. The remainder of the estate will be shared as follows: Rita gets an absolute interest in half of the remainder; the other half is then to be divided equally between the surviving children- Paula, Ainsley and Dickie.
Ainsley (58 years) suffered from a stroke 6 years ago and since then, Abdul regularly sent him money to help with his bills. Dickie (52 years) is married with a wife and five children. They both work as doctors and have a live in nanny who cares for the children. Paula is 49 years of age.
All the children of Abdul are entitled to one half of the residuary estate of Abdul. This is to be held in a statutory trust.
The financial status of the biological children are irrelevant here. Thus the fact that Dickie and his wife are both doctors and are financially well off will not decrease their inheritance share. Also, the fact that Ainsley had suffered a stroke and was dependent on Abdul for medicine and care will not increase his inheritance share.
As Abdul dies intestate, his property is to be devolved on his heirs as per the intestacy rules. These rules clearly provide that the net estate of the deceased (minus the share of the surviving spouse) has to devolve in equal shares between all the issues if the deceased. Therefore, the three children of Abdul will get there shares in equal parts from Abdul’s estate.
Anne (38 years) is a step-daughter to Abdul. Anne had stayed in contact with Abdul and would take him food and help him bathe. Anne was the person who found Abdul dead two weeks ago. She is unemployed.
The Inheritance (Provision For Families And Dependants) Act 1975, s 1(1)(d) gives right to child of the family. This person is any person ‘who is not a child of the deceased, but had been treated by the deceased as the child of the family in relation to any marriage or civil partnership to which the deceased was at any time a party.’ Where the step child has displayed some genuine concern for the deceased and has taken care of the deceased, the step child may be entitled to claim some benefit from the deceased’s estate.
Anne has shown love and care for Abdul and was the person who took care of him during the last few weeks before his death. It is clear that Abdul looked upon Anne as his child. Under s.1(1)(d) mentioned above, Anne can claim benefit from Abdul’s estate. 14 This is because owing to the peculiar circumstances of the case, Anne though a step child to Abdul, can be considered to be a child of the family for the purpose os s.1(1)(d).
Gilly is 78 years old. Abdul and Gilly have lived together for 6 years. She left 3 months ago due to Abdul’s increasing alcoholism and abusive behaviour. Before his death Abdul attempted reconciliation with Gilly who has moved in with her son. But Gikky’s son refused to pass on the messages to Gilly.
The Inheritance (Provision For Families And Dependants) Act 1975, s 1(1)(ba), also gives certain rights to a person who was living in the same household as the deceased for a period of at least two years immediately prior to the date when the deceased died as the husband or wife of the deceased. However, this is not applicable to a cohabitant if the deceased was still married or in a civil partnership at the time of death. As Abdul was married to Rita at the time of his death, therefore Gilly’s claims under this provision will not be successful.
However as a cohabitant, Gilly may have certain other rights. A point of interest here is if Abdul and Gilly were living in the same property as beneficial joint tenants. If so, then the property in which they were living will accrue automatically to Gilly on the death of Abdul. Here the fact that Gilly moved out of the property 3 months prior to Abdul’s death will not impact her interest in the property. Generally, where the claimant cohabitant is living with the deceased but has moved out temporarily from the property due to the behaviour of the deceased (alcoholism, abuse, etc), then the claimant will still be considered to be a cohabitant at the time of deceased’s death.
There are two important questions that need answering at this time.
1. Did Abdul and hid wife, Rita get a judicial separation?
2. Were Abdul and Gilly cohabiting the property as Joint Beneficial Tenants?
Abdul’s estate, which is valued at £650,000 needs to be properly assessed and the claims considered. Prima facie, the claims of Rita as the surviving spouse of Abdul are to all the personal property of Abdul and to one half of his real property. The three children- Paula, Dinkie and Ainsley are entitled to the other half of the real property in equal shares. Anne too can claim from the estate as the child of the family. Gilly’s claim depends on the fact of whether she and Abdul were cohabiting as Joint Tenants. If they were in fact positioned as joint tenants, then that part of Abdul’s estate will automatically devolve upon Gilly as the surviving tenant. If not, then Gilly has no claims on Abdul’s estate, despite their cohabitation because Abdul was not divorced from his wife Rita at that time.
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