Separation - when did it start?

oxters

Mrs_P_Pincher wrote: »

If she believed that their marriage was continuing until quite recently and they were having a 'normal' marital relationship (ie they were having s*x) when they were together, then the marriage continued until she became aware of the infidelity and changed her mind. Often people will agree to say they separated two years ago because, if both parties agree, that is grounds for divorce under English law. I don't see that your friend is under any obligation to agree that the marriage came to an end before she believes it did, especially if agreeing an earlier date would have implications for a settlement.

I think he's probably trying to divorce her under English law on the two year rule, for which he would need her consent, but he may struggle to do that if he is a Scot himself. He will need to be domiciled in England to use English law for the divorce and that is quite a complicated legal concept.

Your friend may need to find another Solicitor, who is not so eager to cave in and actually looks after her interests.

Mrs P P

Thanks Mrs PP, you seem to know about Scottish / English law. Are you qualified? My understanding is that things were quite normal relationship wise while they were together although that might be difficult to prove. Apparently neither countenanced divorce until the new extra marital relationship became known to my friend. She does not know how long the affair had been ongoing, but apparently it continues.
I fear her solicitor may be taking an easy way out to get it over with quickly and avoid court proceedings and evidence giving, but I don't know how she stands legally and if there is a legal definition of separated other than the simple meaning. That's the nub of the issue or is Bitter and Twisted right about the settlement at divorce date rather than the separation?

oxters

Emmzi wrote: »

There are no certainties as every marriage is different.

Mate needs a rottweiller solicitor, as previously advised, who can go through the detail. Not random people off t'internet.

Yeah, I'm really looking for someone with some legal knowledge not just a friendly sympathiser.

JodyBPM

If they've been living separately (bar 6 visits or so a year) and maintaining separate households for the last two years, why does your friend feel (morally or legally) entitled to half of her ex partner's inheritance? My view might change if she is supporting childen of the marriage, but as it stands as stated in the OP, I'm bamboozled as to why she would feel morally entitled to someone else's inheritance? I don't know the legal position though.

Emmzi

oxters wrote: »

Yeah, I'm really looking for someone with some legal knowledge not just a friendly sympathiser.

Try the message boards at wikivorce. Everyone there has been through a divorce - you may find a wider pool of people with relevant experience?

But the quality of advice you recieve will be directly related to what you pay for it.... I still say rotweiller!!

redhenjen

Hi - i am getting divorced based on 2 yrs sepeartion - it has to be not living as man and wife. i.e. you did not do any chores for him whilst he was living there. if he lived there for a few days i and you shared finances etc this constitutes as living as man and wife.
and the other post is right - up until divorce all assets are joint. If you are divorcing now without 2 yrs one of you will have to have grounds for divorce - you can agree this between you if there is no animosity or name the third party.
take the example of the recent lottery winner - he had not divorced so his wife got some of his winnings after 15 yrs apart. mind you they had a kid together so rightly so as no parent can live at a better standard of living if it affects the children. As for inheritance - this also comes under joint assets. as does any savings you may have.
However golden rule - dont involve too many lawyers - get the info yourself from a lawyer and talk to him directly yourself.
if he know he will lose there is no point him fighting and giving it all to the lawyers.

mediators are great but cant really advise too much but can advise you not agreeing to something that is not fair. but it looks good to a judge if you use this approach first.

oxters

JodyBPM wrote: »

If they've been living separately (bar 6 visits or so a year) and maintaining separate households for the last two years, why does your friend feel (morally or legally) entitled to half of her ex partner's inheritance? My view might change if she is supporting childen of the marriage, but as it stands as stated in the OP, I'm bamboozled as to why she would feel morally entitled to someone else's inheritance? I don't know the legal position though.

Thanks but it's not inheritance, it's work related income.

celyn90

I don't know how it works in Scotland (or indeed under which jurisdiction they would divorce if he is living here, I have no legal knowledge) but I was under the impression that the reason for divorce didn't make a jot of difference to the settlement. They should try and sort it amicably, otherwise it will be expensive. All assets are assets of the marriage in the England; all houses, all monies, all debts.

Does she seriously think though that she had a functioning marriage or is it just because she can see money now? I must admit, if I were him, that is how I would argue it. Even if she can disprove or convince the court that two years separation is not a valid ground, he doesn't have to agree with a divorce on grounds of adultary. Unless you have a concerte admission from the other party or very graphic photos, I would have thought adultary is a very hard ground to prove.

If I were him, I would wait 5 years (3 in Scotland I think) then divorce her without consent. By staying married and not agreeing to divorce, he is in a stronger position and she will not get a penny whilst they are married.

OH's ex wife tried this (he wanted either unreasonable behaviour, then later two years separation, she wanted adultery - which wasn't actually the case). She got nothing other than a threat from the court (after messing about for three years) and a warning if she didn't stop messing about, she would have to pay OH's costs; which were about 6K by then. In our experience, the court didn't take too kindly about being asked to adjudicate on a matter which, quite frankly, was less than trivial. The grounds for divorce would not impact the division of assets.

But, she was also told in no uncertain terms that she could whistle for a settlement, that spousal maintainace was an out-dated concept and not relevant in this case (she was in her 30's and no kids) - despite him having gone from being a student to a very high paid job in the time they fought. Better to do it amicably if they can and better to settle out of court as it doesn't always go the way you expect it to. I think her solicitor is being sensible, if she wants a divorce, she should think very carefully about antagonising the other party. Try mediation as a first step. In OH's case, he even offered a settlement to break the deadlock, but she refused and walked away with an awful lot less in the end as even her costs were high (she carried on stacking them up, convinced he would have to pay them - which wasn't the case in the end)