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Family case study: New beginnings...

28 March 2008

Solicitors in the B P Collins family practice continue exploring a fictional case study which illustrates real and familiar issues faced by a couple who have come to the unfortunate conclusion that their marriage has irretrievably broken down, and how these issues can be dealt with.

With the divorce proceedings drawing to a close, Lord Greystoke and Jane had begun to move on with their lives and were now settling their financial matters.

Lord Greystoke had embarked on a new relationship with Barbara, and decided to move in with her. At first, Lord Greystoke was keen to keep his new relationship a secret, fearing that Jane would ask him for more money. He worried that because Barbara was a wealthy woman, Jane might be entitled to claim more maintenance than he could afford to pay, thinking Barbara would have to use her money to pay Jane. Thankfully, Lord Greystoke was advised that the Courts do not expect a new partner to pay for an ex-spouse's maintenance.

However, the fact that he had begun living with someone else could not be discounted completely. His new circumstances mean it is likely he has more available cash now that he is sharing a home and living expenses. The Court will look at what his needs and resources are when setting the appropriate level of maintenance payable. In basic terms, the more money he needs for himself, the lower the level of maintenance he could be required to pay, and vice versa.

Meanwhile, Jane also has concerns about her blossoming relationship with Harry. Although they had not yet begun living together, they have talked about it at length. She was similarly concerned that cohabiting would affect the maintenance that she receives, since she had heard from a friend that if she lived with Harry, Lord Greystoke would be able to stop paying her maintenance completely.

Her lawyers carefully explained that she would be entitled to maintenance for the children while they are in education and that she would also be entitled to maintenance, but whether it ends on her cohabitation depends on the terms of the settlement that she reached with Lord Greystoke. While remarriage automatically brings an entitlement to maintenance to an end, cohabitation does not. It may be terminated after the receiving spouse has cohabited for a period of six months or such other length of time, but only if agreed. If not agreed, Jane's cohabitation may cause Lord Greystoke to seek to vary the maintenance.

Jane's most pressing concern was the ramifications of taking a new job in her hometown of New York. Naturally, she would like to be able to take the children with her, however Lord Greystoke had indicated that he would resist this, fearing he would lose all connection with the children if they went.

If Jane wishes to take the children with her, she would need to apply to Court for permission to remove them from the jurisdiction of England and Wales. The case of Payne v Payne indicates that the most important consideration is the welfare of the child. A Court would consider whether Jane is planning to move based on a genuine and realistic motivation. However, Lord Greystoke's likely objections will not be ignored, and if the Court found that her plans are a deliberate attempt to "cut him off" from the children, then the likelihood is that permission to take the children to New York will be denied.

Eventually, Lord Greystoke and Jane agree between them that the children can go to New York. After considering Jane's plans, Lord Greystoke felt confident that he would be able to enjoy holidays with them and that they would attend suitable schools and wholly benefit from the experience. Thus, Jane is now starring on Broadway, and Lord Greystoke is happy with Barbara, safe in the knowledge that next month he is to spend some quality time with his children.

As the dust begins to settle, Lord Greystoke catches up with his old friend, Ross, who was interested to - hear how the divorce had worked out. Over coffee, Ross mentioned he was planning to live with his girlfriend, Rachel, and that they may even marry. Lord Greystoke recommended that Ross speak to his solicitor about the legalities of living with someone. Ross confided he was worried about what might happen should it not work out with Rachel. Might she be entitled to some of his assets and earnings, in the same way as a wife divorcing her husband may be? Lord Greystoke handed his friend the phone number of his solicitor...

In the next edition we explore Ross and Rachel's situation, and highlight some of the issues they should be aware of before cohabiting.

In the meantime, if you need to speak in confidence to a family solicitor concerning any of the issues raised in this story, or with any other circumstances arising from separation, please contact the practice on 01753 279 045 or email familylaw@bpcollins.co.uk.