# Non EU person. Marriage breakdown. Custody, visitation, mortgage, support, trips home



## maxim78 (16 Jul 2008)

Hi,

My marriage broke down as a consequence we are to settle issues over our 3 year child, maintenance, mortgage etc.

I am from a non EU country. I am seeking to bring my child with me on holidays when I go back home.  My ex wife says no more than 10 days; however as I am from Russia, it is not really affordable and practical to go for such a short period with the three year old.  

Our mortgage takes up about half our incomes, and I find it quite hard to pay half of the mortgage as well as the rent in the new apartment.  This leaves me with very little (enough for food and bills).

She is also looking for spouse maintenance, which I think is ridiculous considering that her income is 30 percent higher than mine; however, she says she will not let me see my own child unless this is paid.  

My main concern is about kid's cultural development since my ex is trying to cut that aspect and if it goes on the way it is I will have to talk to my child in English rather than Russian as this was the case up to now. 

This worries me a lot.

Any suggestions are welcome, please


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## ClubMan (16 Jul 2008)

*Re: Separation*



maxim78 said:


> my marriage broke down as a consequence we are to settle issues over our 3 year child, maintenance, mortgage etc


What exactly is happening on this front at the moment?


> Any suggestions are welcome, please


Sort it all out through whatever process is in train above?


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## niceoneted (17 Jul 2008)

*Re: Separation*

My sympathies to you. I just hate to see parents use there children as pawns. How immature of your ex wife. 
You would be best served getting a good solicitor and ensuring there is a good legal basis to everything, then you may get more access etc. 
Good luck.


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## MOB (17 Jul 2008)

*Re: Separation*

Where a spouse is being unreasonable about parenting arrangements, my general advice is do not waste your time trying to negotiate.  Just go to court asap.  

Generally, an unreasonable position will nevertheless be held in good faith - so you are not going to change someone's view; so don't waste time trying.   I cannot say if the OP's spouse is being unreasonable - these are general observations only.


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## j26 (17 Jul 2008)

*Re: Separation*

Sadly it sounds unlikely you will reach an amicable settlement here.

Yes, there is a duty on a husband to support his wife (interestingly it doesn't apply vice versa), but since she earns more than you, she'd be very hard pressed to get a judge to agree that you should support her.  I'd hold firm on not paying anything for her.  You will of course have to pay maintenance for the child.

One option on the house would be to transfer it all to her, in return for a reduced contribution to the mortgage by you.  Then at least you have a bit more for rent for a place for yourself.  You lose an asset, but gain an income flow, so at least you can afford to live.

As for access, the best interests of the child are what a court considers, and if it went to court, the court would use that overriding issue to make its decision.  If the child has been going to Russia in the past, I'd say it's reasonable that those trips continue.

You don't say if you have solicitors involved, but given that your spouse is starting to use threats about your child to get money out of you, I'd strongly advise you get a solicitor at this stage.  If your finances are that tight, you might even qualify for legal aid, so it needn't cost too much to do that.


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## Welfarite (17 Jul 2008)

*Re: Separation*

What about [broken link removed] before you go through the expense, trauma, soul-destroying process of courts? A friend of mine was able to get an agreement drawn up that satisfied both parties, which he then brought to a solicitor, who effectively had only to sign it to make it legal.He saved on fees and the immeasurably grief that the court brings to families, especially children.


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## Thirsty (18 Jul 2008)

*Re: Separation*



> there is a duty on a husband to support his wife (interestingly it doesn't apply vice versa)


 
That's not the case; either partner can be called upon to support the other.

However, all other things being equal, whilst there is an expectation that a fit and healthy person should be able to support themselves, in general terms allowance is made for a parent who is caring for very young children or an elderly relative, or has been out of the workforce for an extended period of time.

Maintenance and access are two separate issues and cannot be linked.

I would strongly recommend mediation - if nothing else both of you will get a straight line on where you stand legally and can then make choices on what you want to happen.

Any amount of legal process is not going to turn an poor parenting situation into a good one; only dialogue and negotiation will do that.


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## j26 (18 Jul 2008)

*Re: Separation*



Kildrought said:


> That's not the case; either partner can be called upon to support the other.
> 
> However, all other things being equal, whilst there is an expectation that a fit and healthy person should be able to support themselves, in general terms allowance is made for a parent who is caring for very young children or an elderly relative, or has been out of the workforce for an extended period of time.
> 
> ...



Sory, should have clarified - there's a common law duty on the husband to support his wife (but not vice versa)


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## ClubMan (18 Jul 2008)

*Re: Separation*



Kildrought said:


> Any amount of legal process is not going to turn an poor parenting situation into a good one; only dialogue and negotiation will do that.


Very good common sense point!


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## Thirsty (19 Jul 2008)

*Re: Separation*



> there's a common law duty on the husband to support his wife (but not vice versa)


 
That's still not correct; either party can claim support from the other.

In fact spousal and child maintenance can be ordered to be paid even where couples are still married (and such orders have been made).


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## ajapale (19 Jul 2008)

*Re: Non EU person. Marriage breakdown. Custody, visitation, mortgage, support, trips*

Unhelpfull post removed and title expanded to more fully reflect the question.


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## j26 (19 Jul 2008)

*Re: Separation*



Kildrought said:


> That's still not correct; either party can claim support from the other.
> 
> In fact spousal and child maintenance can be ordered to be paid even where couples are still married (and such orders have been made).



Actually it is correct.  You are talking about orders for judicial separation and divorce which are entirely creatures of statute.  All orders made in these cases are made under various sections of the Family Law Acts 1989-1996, and as such they are gender neutral.  However, under common law divorce (divorce a mensa et thoro, which did exist in Ireland) orders were made under common law, not statute, and it was clear under common law that while a husband had a duty to support his wife, there was no reciprocal duty on the wife.  Because of the intrusion of statute, it has not been necessary to change the common law position, and accordingly, this imbalance in duties still exists (in common law only).

You appear to be mixing up court powers under statute and common law duties.


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## Vanilla (19 Jul 2008)

*Re: Separation*



j26 said:


> Actually it is correct. You are talking about orders for judicial separation and divorce which are entirely creatures of statute. All orders made in these cases are made under various sections of the Family Law Acts 1989-1996, and as such they are gender neutral. However, under common law divorce (divorce a mensa et thoro, which did exist in Ireland) orders were made under common law, not statute, and it was clear under common law that while a husband had a duty to support his wife, there was no reciprocal duty on the wife. Because of the intrusion of statute, it has not been necessary to change the common law position, and accordingly, this imbalance in duties still exists (in common law only).
> 
> You appear to be mixing up court powers under statute and common law duties.


 
Interesting though this is I think you'd agree it is entirely irrelevant!

Each case in the district court is taken on it's own merits and all decisions made in relation to access and custody are made in light of the childs' best interests. 

Access/custody and maintenance are two separate issues and although it's a common reaction, access cannot be prevented by reason of non payment of maintenance.

Agree with MOB, the earlier you get in before a judge is often better in this case because it may actually prevent views becoming entrenched. 

No-one here can give you an answer as to whether a judge would allow you to take your child on holidays out of the country for 'x' period against the mothers' wishes because it depends entirely on your personal history and circumstances. Similarly maintenance issues.


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## j26 (19 Jul 2008)

*Re: Separation*



Vanilla said:


> Interesting though this is I think you'd agree it is entirely irrelevant!



True, it was an aside that grew legs of its own. 

But that sort of attitude still exists, and while judges will try to be fair, an element of that type of thinking may well make it into a judges decision making process (whether it should or not is entirely another question - it does smack of paternalism).


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## Thirsty (19 Jul 2008)

*Re: Non EU person. Marriage breakdown. Custody, visitation, mortgage, support, trips*

You don't need either a JS or divorce to get an order for child or spousal maintenance and it's open to either party to claim such maintenance.  



> sort of attitude still exists


 On the basis of anecdotal evidence I would disagree - as I've said before the general expectation would seem to be that an otherwise fit and healthy person can and should support themselves.

Going back to the OPs question; you'll find that things will change over time, if you can agree on the most important issues now and stick to the agreement it will be easier to negotiate and have more flexibility as time goes on.

Don't get stuck down the rathole of 10 days versus 14 days holiday at this stage - it's not worth it; and whatever you do try and agree things between you, otherwise you are asking a total stranger to make decisions about you, your family and your life.  Better to make your own choices.


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