Terry & Co.

Factors affecting men in divorce and why (II)

 


 

 

 

 

 


2. ANCILLARY RELIEF.

Once divorce proceedings have been commenced and, in particular, once decree nisi has been granted the Courts have power to make various final orders in respect of maintenance, transfer of property and/or capital etc. If husband and wife cannot reach agreement then a Court will be asked to decide. There are several important points to be aware of here. Perhaps the most important, and the one which causes greatest resentment and confusion, is the fact that in the overwhelming majority of cases the reasons for the divorce are not relevant in coming to any decisions on the subsequent financial arrangements.

 

It does not matter who divorced whom for what - that almost always has no impact whatever on the decision making process when it comes to resolving financial issues. This can seem hard when one of the parties feels the other has been almost exclusively responsible for the breakdown of the marriage. It is a particularly common feeling in the case of adultery, for example. There is a widespread feeling that the "guilty" party ought in some way to "pay" for what they have done and it often comes as a complete shock to discover this is not the case at all. In deciding financial issues the Courts are not concerned at all about who was to blame and simply do not want to know about the conduct of either party during the marriage unless the circumstances are wholly exceptional.

 

This is not prejudice on the part of the Courts: the rules which they have to apply are laid out clearly in law laid down by Parliament and an enquiry into the respective degrees of fault of the parties does not feature in the list. The relevant criteria are set out in the Matrimonial Causes Act 1973. If you read those criteria they seem at first sight perfectly plain and reasonable. A lay client who takes the trouble to read the relevant section will see, for instance, that it reads in part,

"It shall be the duty of the court in deciding whether to exercise its powers...to have regard to all the circumstances of the case...and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down.."

 

Most people are likely to seize on those words "all the circumstances of the case" and "having regard to their conduct" as meaning that their spouse's bad behaviour can and should be taken into account but it does not quite work out like that. Husbands (and it is usually the husband) who are inclined to think like that soon discover that the words" so far as it is practicable" have a much greater weight than they could possibly expect. It is probably easiest to explain by example.

 

Say there is a husband and wife who live in a modest home together with two young children. There is a mortgage on the home and some equity. There are no other capital assets. The husband has paid the mortgage instalments while the wife has remained at home to look after the children from the time they were born. At first glance the husband might expect the home to be sold and the proceeds divided equally between himself and his wife. That will almost never happen.

 

What happens in this case is that the Court will look at the "needs" of the parties and it will be found that the "need" of the wife and children to have a roof over their head will vastly outweigh the "need" of the husband to have some part of the capital which was tied up in the matrimonial home. Young children almost always remain with the mother and so the overwhelming likelihood is that a Court would order the matrimonial home to be transferred into the sole name of the wife. This is despite the fact that the husband may have made all the financial payments. The Courts regard the needs of the wife and children to be much more important in cases such as these.

 

The truth of the matter is that is very rarely practicable to put both the parties into the financial position they would have been in if the marriage had not come to an end. In the overwhelming majority of cases there is simply not enough money available to enable both the husband and the wife to buy themselves suitable alternative accommodation and so a choice has to be made as to who has the greatest "need". It is almost invariably the case that the Courts put the needs of the wife and children before that of the husband. This can seem, and is, very hard to the man.

 

Theoretically the law is equal for husband and wife but in practice, because the residence of young children tends to be with the mother, financial settlements of capital or transfers of property to the wife are almost always very substantial unless the marriage has been very short or there are other truly exceptional circumstances. This is the hard fact of the matter and it is difficult enough for most husbands in this position to accept but there are many additional factors which are likely to add to the man's sense of grievance.

 

Not the least of these is the very unfair effect of legal aid. Typically, a wife who remains at home to look after the children will be eligible for Legal Aid in matrimonial proceedings because she has no, or a very low, income and the income of her partner is not taken into account for this purpose. The husband, on the other hand, will typically not be eligible for Legal Aid because of his income. The first significant effect of this is that the husband will usually be charged very much more for the same legal advice than the wife. This is because lawyers - barristers and solicitors - almost invariably charge "private clients" considerably more than legally aided clients. It can sometimes be almost twice as much. The reason for it is that legal aid rates of payment are fixed whereas it is the market which determines the going rate for private client work.

 

Whether it is justified is another matter and a husband who finds himself in this position should ALWAYS (unless money is not a problem) find out exactly how much he will be charged and ask how that compares to the Legal Aid rate for the same work. By doing it this way he is probably more likely to be able to negotiate a lower rate of charging. It is important to remember that the market works both ways! Nevertheless, this is the unfortunate position many men find that they are in. This obviously puts pressure on them to settle on terms which are quite unreasonable and unfair but if they do not have the funds to continue they very often have little choice.

 

The second significant effect is that the wife often has a very deep purse to fund her legal action despite the fact that she may have no income or capital of her own. Legal Aid is not actually free in these circumstances. The wife's solicitor's and barrister's bills will be paid for the wife by the Legal Services Commission out of taxpayers' money although if a legally aided litigant recovers any money or property with the help of Legal Aid the Legal Services Commission can recover the money it has spent from the property recovered.

 

If, for instance, the wife makes a claim to have the matrimonial home transferred into her sole name and that is what happens at the end of the day then she has "recovered" the house and the Legal Services Commission can put a charge on it (called "the Statutory Charge" because it is laid down by Act of Parliament) to get back the money spent on the case. In effect what this means is that the wife can mortgage the house to pay for her legal costs. Interestingly enough, the husband cannot do the same. If the house is in joint names the wife obviously would not agree to such borrowing and if the house is in the husband's sole name the husband will soon find he is on the receiving end of an injunction if he attempts to do any such thing. The wife's lawyers cannot lose either way - they will be paid by the Legal Services Commission no matter what the outcome.

 

Legal Aid is not usually limited in matrimonial proceedings (presumably because the Legal Services is fairly confident of recovering its money via the Statutory Charge) and so, in effect, the lawyers know they are dealing with a client who has a bottomless purse. The husband is NOT usually in that position.

 

This does not end the list of disadvantages for the husband. Ordinarily the rule in litigation is that the loser has to pay the winner's legal costs (as well, of course, as their own). There is some obvious sense to this. If, for instance, A owes money to B and B has to resort to Court proceedings to recover the debt it is only fair that A should have to pay B's legal costs of doing so. This is the general principle and it encourages people to be reasonable in the proposals which they make to settle any given dispute: they know that if they do not make reasonable proposals but choose instead, say, to put up a defence which they know to be worthless they will have to pay their opponent's legal costs.

 

It is fair to say that in matrimonial procedings this general rule is applied in a more relaxed way but nevertheless that is the general rule and there is good reason for it. So, for instance, if a non-working wife from a short marriage demanded that her former husband should transfer the former matrimonial home into her sole name and pay her half his net salary for the rest of her life so long as she remained unmarried it is almost certain that such a claim would fail. And if the husband were to spend money in defending such an unjustifiable claim most people would think that the wife ought to bear those costs which her unreasonable stance had occasioned.

 

It cannot be stressed too much that where the wife is legally aided this is NOT the case. Legal Aid gives such a wife an extremely unfair advantage: surprising though it may seem the general rule is that costs CANNOT be awarded against a legally aided person. The rule (laid down by the Legal Aid Act 1988) reads:-

"An order for costs (against such a person) can only be made if:-
(a) ...the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made; AND
(b) ..the court is satisfied that it is just and equitable in all the circumstances of the case that provision for the costs should be made out of public funds."

 

It is very rare for these conditions to be satisfied and what it means, in effect, is that a legally aided litigant can pursue litigation without being at any real risk of paying the costs of the other side if the litigation is unsuccessful. This rule is almost certainly only in existence to save the public purse but it places the husband facing a legally aided wife or ex-wife who is completely unreasonable in her demands at a huge disadvantage. Everyone involved in the system knows this and it encourages unreasonable demands by legally aided litigants such as many wives in matrimonial proceedings.

 

It is quite wrong but the financial consequences for the husband can be very serious indeed. Once again the scales are not evenly balanced because if the non-legally aided husband loses the case because it is adjudged that his proposals to settle were unsatisfactory the wife's lawyers will ask for, and almost certainly get, an order that the husband pay the Legal Aid Board's costs. This situation happens time after time in the courts and it is not surprising that many men rail at the injustice of it all.

 

Given this context of the Legal Aid situation it is not surprising that it affects how cases are conducted. It is always open to husband and wife to come to an agreement between themselves as to what the financial settlement should be and, if at all possible, this is usually the best course of action because it is agreed and because it leads to least acrimony, bitterness and cost. But for such an agreement to be really final it needs to be sealed by a court as a "Consent Order". This means that the agreement is embodied as an order of the court and in that way it can conclude matters once for all.

 

A simple agreement between husband and wife is not final unless this step is taken (although, of course, some couples might be satisfied with such an informal arrangement). What is more than likely to happen is that one or other of the parties will consult a solicitor at some stage. This may be at the very outset to determine what the actual legal position is (and anyone involved in a divorce would usually be well advised to do this) or it may be that husband and wife want their own informal agreement "legalised".

 

In this latter case a solicitor is likely to reply that he/she cannot give full and considered advice without having all the relevant financial information. That is quite a proper position to take although the client should always remember that he/she is the client and that it is open to him or her to say, "I don't much care about that. I know what the financial position is. Please draft a document which reflects our agreement and submit it to the court so that everything can be finalised." A solicitor faced with such a client would almost certainly seek to protect him/herself against a future negligence claim by insisting such instructions were in writing but with that proviso there is no reason why such instructions should not be carried out after suitable explanations and disclaimers.

 

However, such clients are very rare. What is much more likely to happen is that the client will be guided by the solicitor as to what the best course of action is. If the client is a wife who is eligible for legal aid then she will almost certainly be advised to apply for it and once it has been granted the work will commence in earnest. Her solicitor will wish to be sure that he/she has the FULL financial picture before even considering what settlement proposals should be made in this particular case. Since the lawyers know that a legally aided client has, in effect, a bottomless purse there is no especial incentive to be anything less than extremely thorough.

 

In point of fact most husbands do not have bank accounts in Switzerland or the Cayman Islands but the scope for requesting information is much wider than one might imagine. The following gives a flavour of some of the documents or details which might routinely be requested in even quite ordinary cases:-

Bank statements for each and every account covering the last six months;
Statements for a similar period for any building society, post office or other account which contains any funds over which the husband has any control whether as beneficial owner or otherwise;
Copies of all credit card statements for the same period;
Copies of pay slips and any other sources of income for the same period;
Details of any expenses necessary earn the above income;
Copy of most recent P60;
Details of any necessary expenditure on providing yourself with a place to live - community charge, water rates, mortgage interest and re-payments, premiums on endowment insurance etc;
Ownership of any car - make, model, year of manufacture, estimated value;
Any property in which you have an interest, including jointly held property, and articles of any substantial value such as jewellery or furniture etc;
Any unpaid debts including hire purchase debts;
Any endowment insurance policies giving details of any premium, date of maturity, surrender value etc;
Details of any pension scheme including details of what the spouse would be entitled to on death, the transfer value, what would be lost on decree absolute etc.

 

It will readily be seen that it might take some time to get all this information and all sorts of further questions could be asked about any particular parts of it or about details which were incomplete. And this assumes that the recipient is co-operative about the whole process. In reality it is not uncommon for people to resent such intrusion and to be less than fully co- operative which obviously lengthens the whole process still further. And, of course, some of these details require applications to be made to third parties such as insurance companies or pension trustees who have no especial incentive to answer by return of post.

 

All of this takes up time and runs up costs but what is even worse is if the correspondence becomes acrimonious. It is especially easy for this to happen in divorce cases. An overly blunt letter asking, say, for details of a co-habitee's income can result in point blank refusal which in turn can soon lead to court applications, "unless orders" and/or contempt proceedings. It is all too easy for the emotions to take over and in those circumstances no- one benefits but the lawyers. Dealing with all these matters and avoiding all the pitfalls requires considerable skill. And even with such help it will be appreciated that sometimes husbands come out of the process feeling very aggrieved indeed because of all the ways in which the system is weighted against them. The choice of lawyer is crucially important in this area because poor advice can easily make a bad situation many times worse.

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