Four Questions Commonly Asked by Separating Couples

Julia Dyson, Family Law Partner provides answers to four questions she is often asked by couples that are separating.

Can I change the locks?

If one person moves out of a property after separation, I’m often asked “can I change the locks?”.  This is understandable as clients want to change their locks to feel safe in their homes and to prevent their ex-partner coming back into the property when they feel like it, particularly when they are not there.

The answer always depends on who owns the property. If your property is in joint names then legally you shouldn’t change the locks without agreement as both of you have a right to have keys to your own property.  The person who has left the property may feel a loss of control and want to keep an eye on their asset (or their ex-partner) and the person left in the property feels threatened by the constant uninvited visits so tensions can arise over this issue quite frequently.

I would recommend a compromise that personal belongings are removed by the person who has left the property which reduces the need to visit the property regularly and an agreement should be reached over the need for visits and when they should happen, if at all.  It is important to explain that there should be a respectful attitude towards each other’s personal space.

On a practical basis, if you are the person left in the property, you may want to agree that you are given reasonable notice before your ex-partner pays a visit and are given an explanation as to the reason for the proposed visit.  Post can always be re-directed and there is normally very little reason, unless collecting/returning children why you would need to keep returning to check up on the property.  If you had rented your property out to a tenant, you wouldn’t be able to check up on them every week without an appointment; the same should apply in matrimonial cases.

How do I calculate child maintenance?

In order to calculate how much child maintenance you need to pay or receive, the starting point is the child maintenance website.

This calculator is a useful starting point. In order to estimate the amount of child maintenance you may need to pay or receive, you will need to have an understanding of the gross weekly income of the payer.  If the payer receives £40,000 per annum, for example, then the gross weekly income would be £40,000 divided by 52 weeks = £769.23 per week.

Sometimes you may be entitled to receive more child maintenance if your children are in private school and it is always wise to get independent legal advice about school fees.

There may be additional expenses that are better addressed by applying for spousal maintenance alongside child maintenance to cover any shortfalls.

How much do I have to pay my spouse after separation and for how long?  

Firstly, spousal maintenance is not payable in every case.  There has to be enough income to make this additional payment of spousal support and also a need to receive the payment (a shortfall).

Understandably, this is often a thorny issue in cases where clients have been dependent on only one income to support their family or they are used to a certain lifestyle and are worried about how to maintain that lifestyle post separation.

The court has the power to make an order for spousal maintenance if agreement cannot be reached.  It is always a good idea to try and reach agreement between yourselves first as you will know the cost of your outgoings (ie mortgage/bills/food etc.) and if you struggle to agree upon a figure or whether maintenance needs to be paid, then Mediation is always a good starting point before making a court application.  Savings may have to be made by both of you as it will be harder to run two homes on one income, even if that income has been substantial in the past.

In Mediation, your Mediator can help explore these more challenging conversations. They can assist you both to identify what the issues are and work with you to try and find solutions so that you both have enough income to live on post separation.

There are various orders which a court can make which includes the following:

• Fixed term orders – an order for spousal maintenance which is limited to a set amount ie £500 per month for a period of time when it finishes
• Reducing term orders – an amount which starts at a higher figure and then decreases over time as the need reduces eg £1000 per month for two years; then reducing to £750 per month for three years and so on
• Nominal maintenance order – they can make a “nominal” order which effectively leaves the door open for an application to be made at a later date should the need arise
• Clean break – they can make no order at all and dismiss all claims for spousal maintenance. A clean break is considered appropriate in a short marriage or where income needs can be met from capital or where both parties have enough income to meet their needs.

A nominal maintenance order is expressed as a very low payment of say “£1 per year until ….” The payment of £1 is unlikely to be physically made by the payer to the receiver but legally it means that there is a spousal maintenance order in place which could be varied upwards in the future upon a court application.  Clients worry about nominal maintenance orders but they shouldn’t as courts don’t make orders for maintenance unless there is a real need for income and the longer the time goes on, the less likely the court will consider making the order unless there are dire circumstances.

Most orders made by the Court do have a cut-off period when payments are no longer made as it is expected that where possible clients should be able to re-train or gain employment during the period of support unless they are unable to do so.  Also it is always dangerous for a client to completely rely on their ex-partner for financial support in case they no longer have that income.  It is always wise to find a way to support yourself.

Historically courts were known to make joint lives orders where a payer had to make a payment to his/her spouse for the duration of their lives.  These orders are unpopular for obvious reasons and now it is more likely that the spousal maintenance order will be linked to a point in time ie when a person retires or when the children are no longer dependent (18 years or having finished full time education).

The important point to note is that once an order is made, it can be varied upwards as well as downwards until the order no longer exists.  In most court orders, there is normally a point where the court prevents a party from either applying to extend the order or making any order at all.

If you have concerns about either having to pay spousal maintenance for too long or you are worried about how you will cope unless you receive spousal maintenance, you need to seek independent legal advice. Every person’s case is different as you will have different income and different needs.

This is a general summary of the key issues to consider in Spousal maintenance cases.

How do I get my ex-partner to move out of our home?

When a relationship breaks down, it can be very tense living under the same roof as your ex-partner as you both worry about the future.

It is usually a good idea to consider at an early stage how you are going to live together by attending Mediation and agreeing to treat each other with respect to avoid unnecessary arguments. For most people relationship breakdown can lead to an uncomfortable living situation.

In some cases, the police are called on a regular basis due to arguments and violence which takes place at the end of a relationship. Occasionally one person is arrested but often the police re-direct you to a family lawyer and recommend that you take independent legal advice.

If you are in a situation where there has been domestic abuse, you will need to consider taking urgent action as to whether you need to apply for a family law injunction and it is recommended that you speak to a solicitor urgently.

You can also seek advice or help through local organisations including:

RiseUK

Refuge

Change Grow Live (East Sussex residents)

Safe: Space Sussex  (West Sussex residents)

In cases where an Injunction wouldn’t be appropriate, please consider taking independent legal advice early to find out whether there are ways to make this period of uncertainty easier.  If funds allow, it is helpful for you to have some physical space from each other, otherwise it will be difficult to make decisions about your futures.

If you would like to seek advice on any of the issues raised here please contact our Family Law Partner, Julia Dyson, who is also an accredited Mediator.