I have been doing a free question and answer session on Facebook recently. To ensure that as many people get to see the questions and answers as possible, I thought I’d post them on my blog as well, so those that haven’t got access to facebook can see them too (yes, there are some).
If we can help you with any of your legal matters, please check out our website, http://www.yourmckenziefriend.co.uk
1) ‘I received a letter from a solicitor offering me £1500 to settle my case without going to court. The letter said ‘without prejudice’. What does this mean?
When someone puts ‘without prejudice’ on a letter involving money, it usually means that you can take it as them saying, ‘right, we are ready to do a deal with you.’ You can choose to accept the offer and that will be it. If you refuse the offer, and the matter goes to court, it does not necessarily mean that the other side will offer this same figure to you again, and you cannot generally use the letter as evidence in court to show that there was on offer on the table in the first place (although with most things legal, there are exceptions when a Judge may see a ‘without prejudice’ letter). You may of course end up with more in court, or less. It is the risk that you take.
2) ‘I have been threatened, pushed around and humiliated by my ‘soon to be’ ex husband for the past couple of years, and often in front of the children. I want him out of the property, but he refuses, and says that he has a right to stay as the property and mortgage is in both of our names. What can I do, as I just can’t put up with this any longer?’
My first suggestions would be to report any incidents to the police and to see a solicitor as soon as possible (you should be entitled to legal aid for this type of case, although we can help you too if required). If you are suffering from domestic abuse or violence then you need to protect yourself and the children as soon as possible. You need to keep records of all instances (even when you don’t call the police), and if there are any injuries (physical or emotional) you should also see your local GP. All this is important to back up my second suggestion of applying for a Non-Molestation Order and an Occupation Order (types of Injunction). The Non-Molestation Order’s aim is to protect you from the abuse and violence. The Occupation Order’s aim is to get your husband removed from the property. You should be able to obtain an Interim Order from the Courts ex-parte (i.e. without notice to your husband) to cover you in the short-term. You will need to go back to Court to get the Orders longer-term, but you really do need to act now. If your husband breaks the Orders then he can be punished.
3) ‘My lawyer has told me that I should carry on fighting and claim compensation for damages that I received as a result of an incident involving my ex partner. But, when he was charged and appeared in court, he was found not guilty of the charge. That does not seem right to me. Please advise whether I should carry on?’
Without knowing the full details of the case, I can only go on what I assume your lawyer is saying. Your ex partner was found not guilty of the charge against him in a criminal court. It can get a little complicated to understand, but, to have found your ex partner guilty in a criminal court, the Judge/Jury/Magistrate would have had to be convinced ‘beyond reasonable doubt’ that he had committed the crime. That can be quite a hard thing to prove. When you claim compensation for damages, this would be in a civil court. In a civil court, you only need to prove that, it is more likely than not, he was responsible for the incident that resulted in you becoming injured (or, in legal speak, ‘on the balance of probabilities’). That is a lot easier thing to demonstrate to a Judge. So, someone can be cleared of a crime in a criminal court, but still be found responsible and have to pay compensation in a civil court. I hope that makes it a little clearer.
4) ‘My boss at work said that I could not take my holiday at the beginning of December as that is the company’s busiest time. That is when I want to take my holiday. What rights do I have?’
I am assuming that you are employed, not self-employed, and working full-time. You are entitled to 5.6 weeks of paid holiday per year (based on you working a 5-day a week). That equates to 28 days (and for information, companies may count bank and public holidays as part of this entitlement). When you take these holidays is at the discretion of your employer. So, they are quite within their rights to ask you to work at their busiest time of year, ‘December’.
5) ‘I am involved in a messy legal battle with my ex partner in a divorce. My lawyer just can’t seem to tell me what the outcome is likely to be. She must know… Should I find another lawyer?’
The outcomes in family law cases are quite difficult to predict. This is mainly because there is often more than one right answer. Your lawyer seems as if she is doing all the right things for you. You do of course have the right to change lawyers if you feel that you are getting a bad service. But, although a lawyer may be able to get a feel for the way your case is going, nothing is certain or can be absolutely guaranteed until the Judge has made the decision.
6) ’I’ve just been to court on my own and I am totally confused. The Judge asked the person from CAFCASS for a Section 7 Report. What is one of these and should I be worried?’
CAFCASS generally become involved in cases involving children, and may either stay involved with the case as it progresses or drop out. A Judge may ask for a Section 7 Report when he or she needs guidance about making a decision that is in the best interests of the child. There are a few different Section 7 Reports, and they may be referred to as ‘wishes and feelings’, ‘single issue’, ‘full report’ or ‘addendum report’. It is general practice for a Judge to request one of these Section 7 reports and nothing out of the ordinary that should concern you.
7) 'I've been told by a friend that I will have to pay all my ex partners legal fees if I lose my case. I can't afford that. Is that right?'
No, not generally (although there are exceptions, but it is quite rare). Family law cases are very different to normal civil cases (where the loser may be expected to pay the winners and their own costs). Family law cases never really have a winner and a loser as such (although you may not feel that is entirely true at the time). You would be expected to pay your own costs, and your ex partner would pay their costs. It is possible to negotiate costs between the both of you and that may form part of a financial settlement in divorce. The other way is when the courts feel that you have conducted your case unreasonably (e.g. deliberately wasted legal costs). They may then order you to pay some, or all of your ex partners costs, as well as your own, but as I've said, it is quite rare, and almost never happens in children's cases.
8) A question that seems to have cropped up a few times relates to maintenance and contact issues involving children... 'My partner is refusing to pay maintenance. Can I stop contact until I get the money?'
The short answer is no, you cannot stop contact. Contact and maintenance are two completely separate issues. The presumption is that a child should be able to see both of his/her parents. It is not the child's fault that you are not getting the maintenance paid, and you could therefore be punishing the child for something that he/she has no control over. Contact is dealt with through the courts. Maintenance (unless your ex partner is earning above £2000 per week) is handled by the Child Support Agency. The courts may take quite a dim view of you preventing contact over a non payment of maintenance (if your ex partner were to take things further). I would suggest that you get in touch with the Child Support Agency so that they may investigate the matter. If they feel the ex partner is just refusing to pay, rather than not being able to pay, then they can take their own action to enforce payment.
If we can help you with any of your legal matters, please check out our website, http://www.yourmckenziefriend.co.uk
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