The Russian novelist Leo Tolstoy was a shrewd observer of human behaviour. The first lines of one of his most famous and successful novels opens with these words: ‘Happy families are all alike; every unhappy family is unhappy in its own way.”
The novel then follows the lives of a couple, joined in the euphoria of initial marriage bliss, who descend into despair and hopelessness, an unhappiness of their own making, created ‘in their own way’. It is a story, which, although written over a 100 years ago, is just as relevant today as it ever was.
Family lawyers spend a lot of time listening to stories of unhappiness. Many such stories have a familiar ring about them but each has its own features. The professional challenge for the lawyer is to create the best possible outcome for their client.
There are many adjustments which a couple have to make when facing or living through a separation. The perceptive family lawyer will endeavour to prioritise those which appear to be the most urgent although often there will be several which have to be tackled together. These problems will not necessarily be only of a legal nature.
Take, for example, the case of an apparently happy family where the partners have been together for eight years and married for five. They have two children, both of whom are under school age.
The wife is the majority shareholder, chairman and chief executive of a successful family business. The parties agreed when the first child was born that the husband, who had been a teacher, would give up his job, which he loved and become the full time carer of the child. This situation continued after the birth of the second child. Father has no income or savings of his own and the family depended on the mother’s income, which is considerable.
The house is in the sole name of the wife because the husband was made bankrupt some years ago. When, later, the house was bought, without a mortgage, using money provided by the wife, it was thought wise not to have the husband’s name on the deeds, in case of any claims by his creditors.
The husband also believes that his wife had considerable capital savings, most of which were from inheritances which she had received from her parents.
The wife recently told her husband that she had fallen in love with another person – that ‘other person’ being another woman. The wife said that she and her new partner planned to emigrate (refusing to say to which country) and would be leaving as soon as she could complete the sale of the business. She added that she had never had any strong maternal feelings and that she thought it would be best if she cut off all contact with the children.
The wife added that her husband could sell the house, keep the proceeds in exchange for her having the business and he could then go back to work, putting the children into nursery. In the meantime, she would have to borrow money against the house to cover some short term business liabilities.
The final blow was that the wife said that she ‘could not afford’ to continue paying the bills for the house and the support of the husband and the children. She would be stopping all payments at the end of the month.
Unsurprisingly, the husband, who had thought that the marriage was a loving and happy one, was devastated by the news. He was finding it difficult to cope or to work out how to face, let alone deal with the situation.
He consulted a specialist solicitor experienced in dealing with the consequences of family breakdown. The solicitor soon recognised that the husband would benefit from immediate counselling: she arranged this.
The lawyer also advised that steps needed to be taken quickly to try to stabilise the financial position before it was too late.
The solicitor advised that there would have to be a detailed examination of the finances of both parties to find out what was available and come to a conclusion on a fair way to resolve financial matters.
In the short term, to cover the immediate future, a letter can be sent to the wife to make sure that the financial status quo is maintained; protective applications should be made to register his ‘home rights’ and an application should be made to the court as soon as possible to seek an order to prevent any borrowings being taken against the house without his knowledge, or the wife disposing of any assets.
He should also seek a court order requiring his wife to pay maintenance for him and make an application to the Child Maintenance Service for maintenance for the children.
The husband was also advised that once the applications had been lodged, it would be wise to engage in negotiations with his wife, either direct or through her lawyers. In that way, the possibility can be explored of coming to an amicable agreement, not only about the initial problems but for all the other matters which will need to be considered.
As explained above, the husband has no money of his own. Legal aid is no longer available for cases of this sort.
The husband said that he thought that his mother might lend him some money to cover the initial legal costs. The husband had no other lending avenues open to him.
The lawyer advised him that he should include in his application, a formal request that the wife be compelled to make available to him funds to enable him to have legal advice and representation which he could not otherwise afford.
However impossible the position may seem, with appropriate advice and where necessary, speedy action, there is nearly always a solution to every problem which arises in this sort of situation. To the desperate party, this will almost certainly be the first time they have been confronted with such a barrage of issues: the experienced family lawyer can bring a calm detachment and professional expertise to the problems.
If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact a member of our Family team.