Advice/Help needed

TBagpuss

T.T.D said:

Staringattheabyss said:

I recently found out that my wife had an affair. My solicitor advised that i shouldn't put adultery on my divorce as it would be impossible to prove. 

Personally I would have thanked him for his time and walked out.

 Instead they advised that i should put "inappropriate Relationship with a married man".  

I would have laughed at them and said “that’s the definition of adultery….without specifically saying Adultery”, inappropriate relationship with a married man would be the REASON under Adultery on the form.

I have recordings of her basically admitting it but i have been told i couldn't really use them as she wasn't warned she was being recorded.

Yes perfectly legal thing to do, entirely Admissible as evidence. 

As we have a 10 year old daughter and i wanted to minimise disruption to her i sat with my *cough* wife to discuss what we can do, i agreed in principle that i would sign the property over to her so that they didn't have to move etc.  However she's full steam ahead in getting a new mortgage and im worried that she's going to be able to remove me form the deeds/mortgage without my consent at all now.  I'm also worried that she is going to try and take my daughter full time even though i want her for at least 3 nights a week.  

Start child arrangements in family court. Get sealed on paper not a verbal agreement. 

Out of spite she filed for divorce on me siting unreasonable behaviour etc as i was holding back as i didn't want to have a massive fight in court etc.  She told me in one of our conversations that she had effectively decided the marriage was over some 12 months ago but never once said anything to me. I knew something was wrong and i did try and talk to her but i got nothing back.  Even now she has no remorse for what she has done and will do to our daughter.

Im worried now that she is shafting me over the house and will take my kid away form me my daughter is the most important thing to me. My solicitor is being real slow returning calls to but luckily i have had to pay anything just yet as were waiting for her divorce paper to come through to see what they realty say.  What should i do? what should i instruct my solicitor to do?

Sack your solicitor is my advice. 

you had an advantage in starting proceedings within the 6 months window for Adultery.

If she has put unreasonable behaviour on the form it’s because if you don’t respond in time or play legal games or play with delays such as sending forms back unsigned or encroach over time scales and be unreasonable in proceedings she can apply for the divorce to go ahead without you.

you can mention adultery on her end but the court will not be bothered. The court don’t care about the reasons or the details they only care it meets the requirements to divorce, it goes more smoothly if there no arguments over who did what details. 

My advice ask solicitor for the bill and walk away from them, get looking for a new solicitor and look for law chambers for a decent family law barrister if your wife plays games with child access. 

Comments in bold

1. The solicitor was absolute correct. The legal definition of adultery is having sex with another person while you are still married, so it is necessary, to proceed on an adultery petition, to be able to prove not only that their was a relationship but that it was a sexual one. 

No competent solicitor would advise you to go forward with an adultery petition unless your spouse is will to admit to the adulty, because of the cost and difficulty of proving adultery to the standard needed by the court. Recordings are unlikely to provide sufficient evidence quite apart from the issues around using covert recordings in the first place. They may not be illegal in the sense of amounting to criminal behaviour buy t they are rarely appropriate and can certain backfire. Again, the solicitor was absolutely right to advise you against trying to use them. 

2. Issuing a petition based on unreasonable behaviour, and giving as an example of behaviour, the fact that your spouse has formed an improper relationship with another person is the normal way round this. It It's obvious to everyone what has happened, but because  you haven't used the term adultery you don't have to provide the same level of evidence. (and it ca n still be a valid reason for the divorce even f the relationship was a close but non-sexual one) 

3. The only thing that your wife applying first for the divorce changes is (potentially) who pays the divorce costs. IT doesn't affect the financials and while it's frustrating if you are being blamed when she had the affair, it doesn't disadvantage you from a legal perspective. 

4. the arrangements for your daughter and those for the house are separate, although they may affect each other.

I'd suggest that you propose a formal written agreement or joint parenting plan to agree how much time she will spend with each of you - this is not legally enforceable but it is a good starting point, and can be helpful if there is any dispute about levels of child support, for example. 

5. Finances - the aim is to be fair to you both, looking at the financial situation as it is now. IF the situation is that the house is currently in negative equity then there is a net debt - it's not unreasonable to split the debt.

IF you feel that it would be financially beneficial to NOT clear the debt and transfer the house to her then of course it is open to you to proper instead that the house is transferred to you. You would also need to look at the financial position over all. It may be fair for her to take on the debt if she is the higher earner, or if she would be able t o do so and you would not be able to pay your share of it, or would be unable to pay deposit and first months rent if you do, as the court has to try to be fair to you both. But unless there is something which is likely to change the position in the immediate future ( for instance, if you'd had a loan which became a grant after x amount of time, and that was about to happen, so the effective equity was about to go up)  the fact that the house may go up in value in time doesn't change the position as it is now. 

Home contents - normally the relevant value is what they would be worth if they were sold, second hand, so for most people they will have minimal value. You might find it is more helpful to split the home contents so that both of you have some furniture etc to start with, and each of you has to buy some new . you could propose that she keep the home contents in return for also taking responsibility for the negative equity, but from a financial perspective she may well be better advised to say, no, I'd rather  split both the joint debt and the joint furniture. 

You will need to consider whether there are any other financial assets such as any savings or pensions in either of your sole names, as these will also be relevant in any financial split . I would expect the mediator, if you are discussing finances, and your solicitor, will both want you to provide full financial information so they can help you decide what would be fair. 

It sounds as though other than being a bot slow, your solicitor has been giving you sensible and appropriate advice so far. I'd discuss your concerns with them and see what they say - they seem to know what they are doing, so hopefully tou can trust them to help you get things sorted in a way that does work out for you. 

 

Jude57

I think in some cases people want the 'transgressor', the one ending the marriage for whatever reason, to be identified as the one at fault and held to account for their actions. This seems particularly prevalent where there has been infidelity by one party. While that's understandable and entirely human, that's not what courts are for. Seeking to punish the other party via the courts will only incur costs and frustration as judges aren't there to act as anyone's partisan enforcer. The idea of finding Counsel to take up cudgels at this point in a fairly standard divorce is pointless unless the OP has very deep pockets.

@TBagpuss is again absolutely correct in their post above, and the OP would do well to heed their advice, and that of OP's solicitor, who has far more detail of this specific situation and, unlike us here, is accountable for poor advice.

T.T.D

Relevant and reliable recordings are admissible as evidence (under rule 22.1) covert or open! 

“Recordings are unlikely to provide sufficient evidence?”  That’s a sweeping term! Lets Rephrase that to “a clients expectation of their evidence, may not be legally sufficient in reality for proceedings” if it’s a glaring admission on the other hand…or close to one…following rule 22.1 and relevant and reliable test, covert or open doesn’t matter it’s fair game to be put before a judge for their permission to be entered into the proceedings provided you submit a good argument. 

More often than not when faced with the prospect of having your own words hang you, many concede to the recorded admission, before a judges permission is granted, on the advice of their legal advisor, my experience tells me this, and from what I’ve seen of late, due to the increasing use of dashcams, security cams and smart phones that, many a judge will permit the relevant part of the recording or a transcript. 

Staringattheabyss

Hi All,

Sory for not updating in a while its been a pretty horrif few weeks for me.

 

So we had a mediation session on the 16th Aug where my wife appeared to arrive with the clear intention that she was going to have her demands met and be damned with what I want.  The mediator’s weeks prior had sent forms called Form E financial disclosure which had clear instructions on how to fill out the disclosure on the PDF save it and send it back.  After completing mine I told the wife the week before to make sure she does her’s  On the day of the mediation which was sone remotely I was supprised to not only find that she hadn’t completed hers but she appeared to be filling it oput on paper as the session started, this was a remote session.  I was pretty angry at this because she was the one pushing for the mediation. I didn’t let on though.   During the session we came to the house.  I let my wife know some time back that I was willing to sign th house over to her and that it would be good for her to get herself organised on this front as I want to be out pretty quick and I cant do that unless I can prove im coming of the mortgage/deeds of this place 1st.  When asked about how she was going to afford this place she initially said that she had a mortgage for 115k which is 6 k short of the existing mortgage.  However I knew this wasn’t true and so did the mediator as form my own mortgage enquiries I could only get a max of 90k on my earnings and I earn slightly more than my wife.  She eventually admitted the remortage offer she had was for only £86k so I and the mediator asked where the other £35k was coming from.  She initially objected to telling us saying we didn’t need to know however the mediator stepped in again and said we do. Eventually she admitted that her mum was gifting her £28,750 .  The mediator then proceeded to get the wifes financial disclosure during the session and it turns out she has 4 accounts that she admitted to with £6k in combine. This means that with the remortage, the gift and the £6k in her accounts. She would have the money to buy the old mortgage out  and in doing so put herself in immediate equity to the tun of 20-25k if and when I signed over.   After much wrangling it eventually turns out that there’s approx. 24-30k in marital assets her car being the biggest at just under 20k I literally only have my £6k car and that’s it while she had that money hidden away plus there’s a tone of designer handbags that never even got to.

Because of the time taken just doing that we had to start talking about my child.  We eventually agreed on me having my kid on a thur,fri night all day till tea time sat and then again on Monday nights which is effectively joint custody.  It took a while to get this as she kept objecting to anything that would be reasonable to me, that agreement doesn’t really suit me tbh but I relented in the end and agreed to it.

After the session I told my solicitor about what had happened, and she sent an e-mail through me telling my wife that she needs to fill out her financial disclosures properly as we need to make sure it was an open and fair discussion by the next session this weds. As everything would have to be agreed for the consent order which s what we were mediating for

I have also gone through the last 7 years of our joint account statements which we both had our wages paid into and I found a massive discrepancy in how my wife was drawing money out.  Fro the lats 2.5 years my wife has moved over £34k from the joint account to her own whereas I only moved £22k when I looked back at the 4 years prior to that my wife had only took £24k  so it’s a huge change at roughly the same time my wife had said she though the marriage is over.  She doesn’t know I know this yet though.

After the e-mail form my solicitor my wife, while io was on a friend’s stag weekend, decided to move out(finally) and took all her designer handbags etc with her and also took my daughter away to Scotland without telling me. I returned home to find all my wife’s stuff gone and half my kids stuff gone.  I test her and got no reply but 10 minutes later got an e-mail saying that I have been mentally abusing her and that she couldn’t take it anymore and saying that she was only staying because she thought I was going to sign the house over and now she is going because I’m not signing.  While she was in Scotland she told my kid that we were getting divorced etc too which I had said anything to y kid because the wife wanted to wait till mediation and then we both tell her.   

So not only had my wife refused to disclose, she took my child to Scotland which is outside the jurisdiction of England and Wales, then told my kid god knows what refused to answer my e-mails while I was there and only finally when she came back on Thursday did we get a mail form her solicitor only because we were about to go to court to get a court order for my child to be returned to me. In that letter her solicitors says I can have my kid only on thur,fri night and all day sat which is not what we agreed on in mediation. 

I have held off until tomorrow when I speak to my solicitor about whether we goto court or not. As far as I can tell my wife had a strop because she thinks im not signing the house over which I will biut it wouldn’t be legal till the judge signs off pn the consent order and she used my kid as she new I would be frantic over her wellbeing, she even wouldn’t let me talk to my kid while they were away.  Im also thinking that im entitled to some financial settlement considering that theres acxtual assets that can be used ege both cars etc plus if I sign over she would be in immediate equity to the tune of £20k

Im not sure if me asking for £12 so that I can setup again in a new place plus joint custoday as we agreed in mediation is unfair now?

TBagpuss

Your solicitor is best placed to tell you what is fair. In looking at what equity there is or will be I would not include the money her mum is lending her , however if without that there are assets worth £25K then asking for £10-£12K is not unreasonable. 

In terms of your child, the aim is to come up with arrangements which are best for your child, rather than looking at what is fair to you and your ex, so you need to think about the practical arrangements - would bein with you Thursday - Saturday then again on Monday work for her, or would it be disruptive? It might be better if she was with you from Wednesday - Sat , so there was less switching between both houses, for instance (also be aware that child support is calculated looking at hw many nights she is with each of you, so either way, it looks as though she would spend 3 nights a week with you and 4 with her mum, so you would still be liable to pay some child support)