Divorce after separating for several years?

summerday

Hello,

My mum remarried 9 years ago, to someone who at first seemed lovely, they got engaged and then married very quickly in the space of a few months. Soon after they married his true colours came out- serious alcohol problem, jealousy over my mum, and he could at times be violent.

Luckily Mum saw the light eventually and left him, she had her own house that she let out once they married, and she was able to move back into this. She left him in April 2001, so it will be 5 years next month.

Now, sometimes Mum has said she's not sure if she should have got a proper divorce, and I wasn't ever sure either. She has changed her will, but done no more. I read today that when some women retire if they have separated from their husbands it is better for them to formalise it with a divorce, as they can get a bit extra in their pension, and as Mum is quite hard up and will prob struggle when she retires (not least due to paying off a lot of debts that her husband helped her run up, grrr) that might be helpful.

So, the question is, what is the cheapest, easiest way for her to get divorced? I don't know if it can be avoided but if possible we would prefer for her to not have to come face to face with him again, he really was horrid and even hit my little sister at times, and it would be nasty to rake all the bad memories up. Mum earns too much to get legal aid (she's a nurse, so far from loaded, but she had to get an expensive mortgage due to a CCJ).

Any advice or suggestions on this would be much appreciated, I haven't even brought it up with Mum yet as I don't want to make her upset thinking about the past for nothing if a divorce would be too costly etc.

Sarahx

Savvy_Sue

I think it depends whether he is going to contest it or want to argue about money after all this time. If he's not likely to do either of those things then I believe your mother can just get the papers from the court and do it herself. She will, I believe, need to know his address to serve the papers. But this is more of a Bossyboots kind of question ... Bossyboots?

Bossyboots

You called!

There are a few issues here that need addressing.

Firstly - after five years a petition can be brought on the basis of five years separation. There is no defence to this petition unless the divorce will cause immense hardship to the respondent. This is an old fashioned clause and in these days of equality and the ability of women to work, is really redundant. In thise case we would looking at the wife bringing the petition anyway so this would seem the best course of action, thus preventing the husband contesting it on any grounds.

Secondly - even presenting a petition after five years does not remove the right of either party to seek ancillary relief although such a case could be weakened by the establishment of new lives in that time. This is a matter than can only be truly advised on by seeking legal advice from a solicitor who can be apprised of all the facts and figures.

Thirdly - Sarah, has your mum actually had a legal aid financial assessment done? Her ownership of the property might count against her but it could also be classed as a property in dispute as I suspect her husand will go after a pay out from this. In any event, the equity in the property needs to be over £100,000 to exclude her from legal aid and if she has a huge mortgage, she might be safe on this aspect. As far as her mortgage is concerned, if she has a dependant child living at home her income will be reduced by the amount of her mortgage for legal aid purposes. If there is no dependant child at home then this would be capped at £500.

Fourthly (is there such a word?) - it is essential that the divorce is wrapped up with an court order in relation to finances which excludes both parties from claiming against the other in the future.

Lastly - if legal aid is not available the forms for a divorce can be downloaded from The Court Service website. They are not too taxing to fill in and need to be sent to the local county court with an original marriage certificate and the fee (which I think is now £300). There is also a £40 fee for applying for the decree absolute later on. There are instructions as well on the website as to what to do. On an uncontested divorce, it is all done on paper and the parties do not need to meet. However, if they can't agree the ancillary matters and it ends up going to court they will of course see each other.

Only someone will all the facts and paperwork can say whether divorce is the right thing for you mum. It seems on the face of it that the simplest thing for her to do is issue the divorce petition and see what crawls out of the woodwork. I would strongly advise though that at the very least, she arranges a first appointment with a solicitor which she should get at a reduced rate before she does anything.

mountainofdebt

whilst its a good idea that your mum has made a will, I think that the will would be null and void once she did get a divorce.

In addition has she said why she has (presumably cut out her husband out of the will - could he possibly contest it otherwise?

I don't know if the above is true so that might be worth checking.

Bossyboots

Wills need updating after divorce because the survivorship clauses will become null and void, along with any references to the ex-spouse. If the will has been made in anticipation of divorce then it is likely it will stand as drawn. It would however be wise to check that the will writer was aware of the separation and potential divorce proceedings at the time. Making a will does not void any claims that the spouse may have under the matrimonial rules so if the couple are not divorced with the court order in place before the OP's mum dies, then he would be in a position to make a claim against the estate (slightly different to actually contesting the will but with pretty much the same likely end result).

jobbingmusician

I organised a divorce for my (now) husband, who had left his (then) wife about 20 years before. It was dead simple, and I did it by googling DIY divorce and following the (free) instructions. It cost less than £200 in total (legal fees to register the divorce etc).

Some basic info on this BBC site

Free forms here!

Bossyboots

The fees rocketed on 10th January 2006 and unless you fall into the fee exemption category you will not get divorced for less than £340 in England and Wales.

The fact still remains that even doing a DIY divorce you also need a court order preventing future claims against each other. Getting a decree absolute is not enough.

margaretclare

mountainofdebt wrote:

whilst its a good idea that your mum has made a will, I think that the will would be null and void once she did get a divorce.

In addition has she said why she has (presumably cut out her husband out of the will - could he possibly contest it otherwise?

Yes, you need a new will once you're divorced - and also if you remarry.

I don't think the husband could contest the will unless he could prove that he was financially dependent on her. I understand that this is incredibly difficult for any adult to prove, unless severely disabled or something like that.

HTH

Aunty Margaret

gundo

Erm, I am not a lawyer etc. etc. but for goodness sake tell your mum to get a divorce! A friend of mine for whom I was executor of her estate, when she died her ex-husband still received bits and pieces despite them being divorced some 15 years prior to her death (and she was a lesbian living with a new partner so you can't get much more divorced than that!).

One thing that happened that would be worth checking which my friend overlooked and fortunately her ex-husband was an honourable chap who forwarded the letter on, was her occupational pension which paid a death in service benefit. When she'd joined it she'd nominated her husband to recieve the lump sum should she kick the bucket whilst working. Some 15 years later when she did die he was still nominated and the fact that they were divorced was irrelevant. If your mum has anything like this, make sure she gets it changed.

In actual fact recalling the events now, as I remember it, she had actually told her occupational pension (in writing) that she was nominating her partner but the pension scheme hadn't updated their records and still sent the cheque (for a 5 figure sum) to her ex. So tell them and get them to confirm in writing that it has been done.

BTW I would never ever volunteer to be an executor of an estate again. It was hard work, complex and time consuming, the same sex couple business complicated matters immensely.

summerday

Wow, thanks for all your replies. I should make clear that when they got together he was bankrupt and renting a house (his daughter was guarantor). Mum was living in her house that she had a mortgage for in her name only (the house that she and my dad initially bought together). Her second husband only lived in her house for a few weeks when the wedding was near, as he had given notice on his rented house and they had arranged to rent a bigger house for all of us to live in togther as soon as they were married. We then all moved into this rental house that they had a joint lease for.

He is a qualified medical doctor and was always earning more than my mum (a nurse) although he was very disorganised with money and didn't pay bills etc. When they separated both he and my mum had CCJ's for outstanding rent payment. My mum decided to sell her house and move somewhere smaller to get rid of these joint debts so she could have a clean financial slate.

I have no idea where he lives etc, even if he is still alive I suppose (he has serious alcohol problems- would start drinking cider as soon as the local shop opened at 9.00am- yuck!).

It's so awful to think that he might be able to claim on her property even though he barely lived there let alone paid towards it, gave her nothing but false promises and violence to her and us kids... this is why we don't really want to get in contact with him, it might cause loads of stress and just be bad news if he is entitled to the house when she dies anyway (please don't think I am thinking of myself, I would happily hand over any inheritance to charity rather than see the injustice of him getting it all). This does sound wicked but maybe it's easier to just take no action and let nature take its course, as mum is likely to outlive him due to his alcohol abuse...

Does this change any of the previous advice?

Thanks again, Sarah x

summerday

gundo wrote:

One thing that happened that would be worth checking which my friend overlooked and fortunately her ex-husband was an honourable chap who forwarded the letter on, was her occupational pension which paid a death in service benefit. When she'd joined it she'd nominated her husband to recieve the lump sum should she kick the bucket whilst working. Some 15 years later when she did die he was still nominated and the fact that they were divorced was irrelevant. If your mum has anything like this, make sure she gets it changed.


BTW I would never ever volunteer to be an executor of an estate again. It was hard work, complex and time consuming, the same sex couple business complicated matters immensely.

Thanks for this. Mum has changed her pension so that he wouldn't be the beneficiary. She did the will not thinking of divorcing in the near future, the solicitor seemed to think it would be okay.

Sarah