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Talks Divorce

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QUESTION

I left my wife two and a half years ago. Eighteen months ago my youngest son left home to go to University and rarely returns home to see his mother. Neither I nor my wife began divorce proceedings until we had been separated for two years, as I, in particular, did not want to create any unnecessary hostility between us.

However, my wife is now flatly refusing to put the family home on the market even though it is far too big for her to live there alone, and it is exceptionally valuable, being worth somewhere in the region of £1.5 million.

It is mortgaged, and I am being forced to pay the mortgage. I am very concerned to hear from my solicitor that there may be a very significant delay in the Court ordering a sale of the property as this cannot be done until we get to a Final Hearing and in the meantime there are going to be significant delays because my company and other property needs to be valued.

I feel that I cannot possibly afford to keep paying the mortgage on the family home, but if I stop this will impact upon my credit record and negotiating position with the company bank.

What can I do?

ANSWER

Very recently a husband in a very similar position decided, very unusually, to apply to the Court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), and under Section 17 of the Married Women’s Property Act 1882 and further applied for an Occupation Order under the Family Law Act 1996. This was an interesting approach for a husband, who, like you, was feeling exceptionally frustrated at the length of time it was taking to sort out a financial settlement between him and his wife.

Under the Matrimonial Causes Act, which usually governs the way in which divorce settlements are reached there is no jurisdiction for the Court to order a sale of the family home, or indeed any property at all until the Final Hearing, but in this recent unusual case the husband was in a similar position to you and needed to sell as soon as possible. His wife was not agreeable.

The Court of Appeal agreed that under TOLATA they could order an immediate sale of a house and indeed did so, and thus if there really is going to be an untoward delay in sorting out your divorce settlement then this may well be a sensible way forward.

QUESTION

I have two children aged nine and eleven. I wasn’t married to the children’s father, but before we separated we made a Parental Responsibility Agreement. I am now married, and my husband has a great relationship with the children. I would like him to have Parental Responsibility. Is this possible, even though my husband is not the natural father?

ANSWER

Following a change in the law which came into force on 30th December 2005, it is possible for your husband to acquire Parental Responsibility (PR) by way of a Step-Parent Parental Responsibility Agreement. This agreement must be done on a prescribed form similar to the one you used for the children’s natural father. However, because the natural father has PR he must also sign the agreement.

The agreement form tells you how it must be signed, and registered at the Family Division of the High Court in London.

If the children’s father will not agree to your husband having PR, you and your husband could apply to the Court for a Joint Residence Order. Your husband would acquire PR through the Residence Order. The Court can make a Joint Residence Order if it is in the children’s best interests to do so, even if the purpose of the Order is simply to provide a step-parent with PR.