Are thereany legal experts out there who could help with a spousal maintainence prob

masonj3

Hi

Im looking for some advice from a legal angle please if poss

Background
My dad married in 1969 and had a child. In 1972 his then wifes family won the pools and his wife decided she would have a better lifestyle living with her parents so walked out and took the baby with her one day when my dad was at work. She then later filed for divorce

The divorce went through not long after and my dad had to pay child maint of £3 per week until the child was 16 and spousal maint of £4 to his ex wife. This is an old style court order and it only states that spousal maint should stop on his ex wifes remarriage.

Problem
My dad has always paid the maint and is currently still doing so. He remarried and had one child {me]. He set up his own business and it did very well and as a result my parents have two properties {one in joint names , one in my moms name only}, 3 very good pension plans, a car and some savings.

About 5 years ago my dad started having strokes and had to close the business - he didnt get a good price. He has numerous other conditions mainly causing him pain and limited mobility. He also has some mental health issues and anxiety and on occassions some behavioural issues caused by the strokes. My dad now is in receipt of disability living allowance and incapacity benefit and my mom works a few hours a week and is claiming for carers allowance. So their income isnt great but they do have assets.

He has recently been in hospital with yet another condition and missed several months of his spousal maint payments. The court wrote to him asking for the arrears.
I contacted the courts to explain and offered to pay the arrears myself until my dad was well enough to access his money, my only request was that I pay this over a couple of weeks to a month as I couldnt afford to repay in one go.
The courts said they would let me know if this was possible and get back to me. The following day I had a voicemail message on my phone from the courts but meant for my dads ex wife basically asking whether she had come to a decision about my proposal.
I rang the courts {a bit annoyed} and told them they had left the message on my phone is error and that basically if she didnt want to accept my offer then she would have to wait until my dad was out of hospital and well enough to sort it out himself. The clerk said that they were happy with my proposal and to just pay that way. So i ve sent a cheque for the first half of the arrears

My dad does not see why he should still have to pay her after all this time. I ve tried to get advice on whether its in his interest to request to stop the payments and have been more or less told for the amount involved it would cost a lot more to do everything by the book and request for payments to stop. So its a case of pay up and shut up.

We suspect that she is co-habiting but only have electoral roll info to show she has lived in same property with this man since 1982 so know thats not sufficient to show she is being supported.

We would really like to challenge this but have two big concerns:-

1} Would my dad stand to lose more in the long run, given the fact that she has only ever been paid £4 per week and there has never been any increases linked to inflation etc

2} My dads health - I dont think he is well enough to appear in court, Im certain his GP would agree but if this was the case could anyone else represent him or could it be dealt with in his absence?

A few people on here on a diff thread have suggested we stop paying full stop and see if his ex takes us back to court? Would the court not summons my dad if he stopped paying?

If she is being unreasonable about the current arrears I cant see that writing to her would gain her agreement to end the payments, that said she has never applied to the courts in all this time for an increase so is it worth trying to call her bluff via a "solicitor style letter" stating she would have to declaring her income earnings etc to the court?

Apologies for the length of this post but would really appreciate this viewed from a legal aspect.

Thanks x

miserly_mum

When my Mum and Dad split up 30 odd years ago he had to pay her spousal support and maintainance for me through the court (no CSA then) He had his own business at the time

Payments for me stopped once I left school and he continued on paying Mum her money for a good few years.

Then my Step-Mum had a heart attack and took redundancy on health reasons and Dad gave up work to care for her. (he had sold his business several years prior to this)

Obviously their/his circumstances and income dropped considerably and my Dad was in his late 50's by then.

Basically he contacted the court and explained his circumstances and because they were on Benefits etc he didn't have to pay anything. Also by this point lifetime Spousal support had been done away with.

Rather than just stop paying you should contact the court explaining the change in your Dads circumstances( financially and health wise) and I very much doubt he'd have to pay anything.

From your previous post i believe it was a small amount per month he was paying anyway so its highly unlikely they'd pursue an elderly ill man who has done is best to contact them and explain why he can no longer pay.

Also spousal support as such no longer exists so even if his Ex wife reapplied she wouldn't get nything anyway

masonj3

Thank you for that , can i ask did your dad just write into the court and provide proof of his income or did he have to attend any hearings etc?

miserly_mum

masonj3 wrote: »

Thank you for that , can i ask did your dad just write into the court and provide proof of his income or did he have to attend any hearings etc?

At the time I think he had to go back to court but I would think given your Dads ill health/ mental health issues then proof of income and maybe a letter from his Doctor would be enough.

Could you contact them again explaining everything and hopefully they can tell you how to go about things. Or maybe Citizens Advice?

margaretclare

Hi again

I have been having a little look around, and I found some very interesting snippets (what did we ever do before Google???)

For example: http://www.wifesgone.com/webwizforum/forum_posts.asp?TID=56 You'll note that a poster on this forum says: "The good thing about SM is that it ceases when they start co-habiting with their new guys. We have to prove it of course!"

Another site that I found says that England is almost the only country nowadays where SM exists at all. See: http://www.familylawweek.co.uk/site.aspx?i=ed2083

Also: http://www.wikivorce.com/divorce/Frequently-Asked-Questions-cat-Spousal-Maintenance-437.html

In the latter, the length of the marriage and whether there are children are said to be important factors. There is a presumption of a 'move towards self-sufficiency', in other words not a meal-ticket for life.

HTH

loftus

But, and I said the same on your other thread, however unjust this is, it is a court order and to be varied will require an application to the courts. Your dad can apply for a variation, but from what you say about his health he would be unable to represent himself and would probably need legal representation. If his ex chooses to fight she may well lose - and probably should lose. However is it going to cost him more to obtain the variation than he currently pays in maintenance?
As I said before - if it's a matter of principle more than a matter of money then you'll pursue it. Otherwise you'll need to do the maths.

masonj3

Hmmm thanks everyone for your input am really in two minds - if i could attend on my dads behalf I think id possibly go for in

Will continue to mull it all over until we make a final decision - any others views will be appreciated especially anyone from a legal background perhaps.

Margaret clare - thanks for the links ......some light reading ahead of me lol x

silvercar

You could write to her and tell her your Dad is ill and can't afford to make payments anymore. Add that you understand that she could pursue him in court but that you would then use the electoral roll as evidence that she is co-habiting and counter sue for repayments of all maintenance since she started co-habiting.

masonj3

Oooh silvercar I like ur style - perhaps u should pay her a visit for me lol!

Seriously thats an idea write to her directly - will give it some thought cheers x

loftus

The electoral roll is not proof of cohabitation though. He only has to show a rent book and you would have a hard time proving he wasn't a lodger.

masonj3

yes unfortunately ur right loftus bloomin long tenancy agreement though 1982 -2008 lol

only opton to avoid court as i see it is to try and call her bluff and make her think we've got evidence and suggest that if she isnt in agreement then we can go to court and officially declare our incomes etc ...........knowin my luck will very likely backfire lol