If I don’t work full time, the children get to see me and I’m there for them for their matches, concerts and, well, just “there” for them. The only way they and I can see more of each other than under the strict terms of the court order is for me to turn up to all their school events; I cannot be stopped from doing this as it is my parental right regardless of any court order. I therefore come to all their school events, their school masses and assemblies, their sports matches, their music concerts and so on. I even go to their children’s parties sometimes if it is at a friend’s house; the parents of the birthday children know that the children and I don’t get to see each other much, so they are happy for me to come along…

If I work, they will miss out on those times with me. They already have a mother that they cannot access due to the Court order. I do not have a full time job; I have chosen to be self-employed to give me maximum flexibility to spend time with the children and be there to support them. Consequently, I don’t have much money. I cannot afford a nice car, or expensive holidays or to take them out to restaurants or give them a big house. We have to share a bed and go camping instead of staying in hotels.

I have repeatedly asked them whether they would prefer me to earn enough to buy them nice things and to have a smart car and live in a bigger house or whether they would rather that I have the time to come to all their matches etc. There is a resounding and unanimous vote from them that they would prefer my time than my money. There is not even the slightest question in their minds about that….

The irony is that, because I can’t provide these material things for them, the court is less likely to agree to the children being looked after mainly by me! The idea that one parent (by working full time and therefore not spending time with the children) is more able to “look after” the children because they can provide for them materially is nonsensical given what a child wants. A child wants time with their parents, not a smart car or a big house. Provided the parent can provide food, clothes and a home, who is to judge whether the standard of that material provision is “high enough” to be acceptable and therefore sufficient?

Here is a link to a blog written on this subject from a child’s perspective:

http://laura1318.wordpress.com/2008/07/16/the-working-mum-from-the-daughters-perspective/

[For the relevant law on the issue of maintenance and finances see the following statute: Matrimonial Causes Act 1973: http://www.opsi.gov.uk/acts/acts1973/pdf/ukpga_19730018_en.pdf]. Although I am a lawyer, I am only expressing an opinion in this article and am not stating that the legal position is correct as each case turns on its own facts…..

June 2006: 

Well, the Judgment in the Ancillary relief proceedings has been given after 14 months of finance proceedings involving around 6 separate hearings and a 4 day trial in the High Court. Further cross examination by yet another hostile and unnecessarily aggressive barrister, further humiliation and upset for me. Finally, the Judge awarded me 2/3 of the capital of the house, but only a small percentage of my husband’s income ie £35k out of my husband’s £142k. The Judge  accepted that, due to my Bipolar, it will be harder for me to get a well paid job so he gave me a higher proportion of the capital to try and ensure that I will be able to provide me and the kids with a house out of the balance of the capital of the sale of the house.

Great. In theory.  BUT He went on to say that my exhusband has total control over the sale of the house.

Guess what my exhusband does?

You’ve guessed it! He has agreed a sale on it which leaves me with a huge debt and no way to pay it. Although I appreciate that there is a credit crunch and the housing market is unstable, he has agreed an offer which represents a fall of 35% of the original sale value. Although this price means that he will also be left in debt, he has the lion’s share of his income with which to meet his debt repayments.

My maintenance doesn’t cover even half of the debt repayments on that kind of debt. I have no steady income and little hope at the moment of establishing one. I cannot buy a home for my children nor even rent one, despite the fact that I have Shared Residency  (definition in the Children’s Act ) and therefore a responsibility to provide them with a home. We live out of my brother’s spare bedroom with 3 of us sharing a bed whilst the other one sleeps on a single bed in the same room….I have now been living like this for 18 monts while he has remained in our 7 bedroomed house…..

He claims he cannot afford to give me more maintenance to fund a rental home for me and the children.

I have Shared Residency of the children. This means that the children have their home with me AND my husband. Even though he has been given the care of them for most of the term time week, the law states that the children need to be housed with BOTH of us.

Yet the Judge’s decision leaves my husband with £190,000k net per annum with which to house himself, his nanny and for his and the children’s living expenses. I am left with £35, 000 with which to house myself and the children, to meet the debt repayments of £100,000 and to provide my children with clothes, food and sundries. After paying my debt repayments, I am left with around £500 a month to meet their and my needs.

Now I appreciate that many people would say that they would be incredibly grateful for £500 a month and part of me feels ashamed at complaining about it; I know that a great number of people have far less than that to live on and many receive nothing at all from their ex spouse.

But that’s not the point: the point is the vast disparity between our respective levels of living from here on in. It is the inequality that I am upset by and feel that the whole result has been hugely unfair in what is supposed to be a fair system. 

Under the Matrimonial Homes Act 1973, section 25 states that the Court has to take the following issues into account when deciding how to distribute the proceeds of the family house together with making financial provisiong for both the children and the spouses. The considerations are as follows:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the forseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the forseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.

The court has to exercise those powers to place the parties, so far as it is practicable, in the financial position in which they would have been if the marriage had not broken down and each had properly discharge his/her financial obligations and responsibilities.

I do not believe that the distribution of the income to this marriage was anywhere near being sufficient to meet many of the criteria set out in the above Act.

Given that I am now in such an untenable position, I am having to now go back to Court to seek a variation of the court order made so that the Judge can re-consider the maintenance and capital position.

My lawyers are so horrified at the debt position that I am left in, together with my homelessness, that they are going to act for me for nothing as, in their words what has happened to me “ just doesn’t feel right”.

The fact is that the result of this whole case “just doesn’t feel right” and my children and I have suffered and are continuing to suffer hugely.

We are now in a position where my children do not have a home with me despite the fact that there is a Shared Residency Order in place.

I’m intending to appeal this decision so watch this space….

For any of you going to Court over the finances of your divorce, consideration of your fitness to work as a Bipolar sufferer will be a top priority.

80% of people with mental health disabilities are unemployed. This doesn’t mean that 80% are unemployable; it means that:

• there are many employers (4 out of 10) who won’t employ someone with a mental health illness
• there are insufficient flexible working opportunities for those who suffer to enable them to work in a way that they can manage their condition effectively
• there are those who are so discouraged by their condition that they “self stigmatise” ie they believe so strongly that nobody will want them, that they don’t even apply for work
• there are those who are worried that, if they apply for work, they will lose their incapacity benefit
• there are many who worry that they will be subjected to hostile/negative/unpleasantness in the workplace if colleagues find out that they have a mental health illness.

If you are fighting with your exspouse/partner over finances, they are bound to argue that you (the Bipolar sufferer) could go out and get a job and support yourself and therefore you shouldn’t require ongoing support from your ex spouse/partner.

This is what my ex husband argued: because I am a qualified lawyer and used to work in a top 10 City law firm, I should be perfectly able to go back to such a highly paid environment and support myself and our three children and therefore he should not have to pay me any maintenance.

I argued that my “ability” to work and obtain highly paid employment, is an entirely separate issue to whether I will, in reality, be offered a job given my mental health background.

I argued that, given the 80% of unemployment amongst the mentally ill, it is unlikely that I will fall within the 20% who will get work at a high level. I might get low paid and low status work, but if I do, that is likely to be insufficient to enable me to support myself and my three children adequately in the lifestyle that they are used to (eg private schooling etc).

How can you determine these issues? Well, you need expert evidence ie an expert to write a report to the Court and then come to Court, if required, to give evidence and who is willing to be cross-examined on the evidence he/she gives.

Ideally, you have 2 experts: the first should be your treating psychiatrist/doctor who can give the Court his/her assessment of your ability to work. This will include:

• a description of your diagnosis eg Bipolar 1, Bipolar 2, rapid cycling Bipolar, cyclothymia, schizo – affective disorder etc
• an explanation of the effect that your diagnosis has on your ability to work eg levels of concentration, focus etc
• an explanation of which medication you are on and how this affects your ability to work eg does your medication make it difficult for you to wake up in the mornings? Does your medication make it harder for you to concentrate?
• an assessment of which types of work you might be able to undertake eg if stress is one of your triggers, would you be able to hold down a highly stressful job?
• What are your particular triggers? eg if noise is a trigger, how would commuting to and from work on a busy/noisy train/tube/motorway affect your ability to commute?
• your longer term ability to hold down a job
• your own ability to manage your illness eg do you recognise your triggers? Do you comply with your medication regime? Have you developed good coping strategies?

This expert report will be given to the Judge so that he/she can form a view of how your own particular illness affects you and how it will affect your ability to work.

This will help the Judge decide how likely it is that you will find work, maintain work and what level of work in terms of pay and status that you are likely to achieve.

The Judge can then base any capital distribution or maintenance levels with that knowledge in mind.

If the Judge is unaware of the discrimination issues that surround the employment of the mentally ill, then it is a good idea to submit to the Court some well researched papers on the subject. For these, Google “Professor Graham Thornicroft” and you will find some very good resources on how discrimination in the workplace affects the mentally ill.

A particularly good piece of information can be found in his book “Shunned”. You can obtain this from Amazon.

The Social exclusion part of the government’s website is also helpful. Here are some useful links:

www.library.nhs.uk/SpecialistLibrarySearch/Download.aspx?resID=213004

This above link is a paper called “Actions speak Louder” and you can download this using Acrobate.

Resources for investigating the issue of Social Exclusion of the mentally ill include:

news.bbc.co.uk/1/hi/health/503876.stm

BBC news article on Social Exclusion of the mentally ill.

www.literacytrust.org.uk/Database/Exclusion.html

www.ukcap.org/getheard/index.htm

www.lga.gov.uk/lga/aio/33473

If you Google “Social Exclusion government taskforce for mentally ill” you will find a whole load of material which will inform you about the stigma of mental illness in the workplace.

Any questions about any of this stuff, please send in your comments.

April 2006: My husband is seeking an Occupation Order to chuck me out of my home.

The law permits a person to apply for an Occupation Order under the Children’s Act where the Judge considers that the children would suffer if a parent stays in the home with the children. This an example of how the Courts and the legislation haven’t addressed the issue of mental health in family law proceedings. On the one hand, my mental health condition has been given by the judge as the main reason as to why I can’t see my children often as she recognised that I am vulnerable to stress as it can trigger an episode of my depression and anxiety and looking after children is deemed to be stressful.

BUT on the other hand, my condition has been completely disregarded by the judge when it comes to chucking me out of my home; the fact that I am inevitably going to suffer great emotional and psychological stress from being forced to leave my children and my home is irrelevant. The court considers the welfare of the children as paramount: fair enough as a general rule. But how is the welfare of a parent with a mental health condition going to be weighed against the welfare of the children and the welfare of the other parent?

Is this mental health discrimination and prejudice or just simply a total lack of thought/ignorance on the part of the legislature or of the individual judges applying the legislation?

My husband is applying to the Court for an Occupation Order to get me, a Bipolar sufferer, out of our matrimonial home. He wants me out immediately. I don’t have a regular job or income (because I have been looking after our 3 children, so I am self employed and don’t have regular work). I have no money to buy another house or even rent one until our matrimonial home is sold. He is refusing to give me any money to pay the rent or support myself: he just wants me out and doesn’t care where I go. (Even though he earns £450,000 he claims that he cannot afford to pay for me to rent somewhere else so we are now having to go to court over that too!).

I legally own half of the matrimonial home and have lived there for 10 years and have spent around 8 of those years renovating it, putting huge amounts of energy, time and love into building it. Accoring to Matrimonial law however, the fact that you own your home makes no difference; the courts can still make you leave it. Any property law rights are overriden by the Matrimonial Law as the matrimonial finances are considered to override property law. (As an ex Property lawyer, I am still appalled by this notion………On the one hand you think you legally own it, only to find that actually you don’t any longer…………)

In case you are wondering what an “Occupation Order” is the following definition may help:

If you want the right to return to, stay in or exclude someone else from the home, you may be able to use an occupation order. Occupation orders can also enforce rights, as well as giving or ending rights to occupy a property. They can also be used to restrict someone’s use of a property, for example, if you and your partner have to live in different parts of the same home.

Occupation orders usually last a specific length of time and are supposed to be a short-term measure and only used in cases where the child would suffer significant harm should the parent remain in the house.

In England, the law on Occupation Orders in Family Law is set out in The Family Law Act 1996, section 33. If you want to check out the legislation for yourselves go to the government website setting out the Family Law Act 1996 as an original piece of legislation and read it for yourself.{http://www.opsi.gov.uk/acts/acts1996/e1996027.htm#33.}

I go through what section 33 says in more detail in another post. But for the purposes of my own particular immediate case, my husband is threatening to apply for an Occupation Order to get me out of our home on the basis that I am causing the children “significant harm” by remaining in the house.

Now, because my husband has been deemed to be the children’s primary carer in the custody battle we have just had, he and the children will continue to live in the house for a while. In the meantime, he is not prepared to countenance me continuing to live there and so is applying to the Court to get me out of the house. I want to remain in the house until it is sold so that I can continue to look after the children and they don’t have to move into rented accommodation with me but can go from their home into two separate homes, both of which will be permanent instead of rented.

I don’t have any money; I don’t have a job and my legal bill is circa £300k with credit card debts and loans amounting to around £50k. All my money is tied up in the house so I can’t just “up and leave” and buy or rent a new home.

I have taken legal advice on whether he can just obtain this Order from a Court and chuck me out. In the judgment in our custody battle the Judge said that I should leave the house within 28 days. She didn’t take into account any fact regarding my lack of finances or the reality of trying to find a new home to go to. According to the Barrister who is now advising me, the Judge should not have even begun to deal with such an Order without listening to all the facts relevant to making an Order to exclude me from my home.

When the Judge had the request to make an Occupation order to exclude me from the home, by law she is required to have regard to the following issues as set out in the Family Law Act:

1. The housing needs and housing resources of each of the parties and of any relevant child
2. The financial resources of each of the parties
3. The likely effect of any order, or of any decision by the court not to exercise its powers under this section on the HEALTH, SAFETY or well-being of the parties and of any relevant child.

If the court thinks that the applicant or any of the children are likely to suffer significant harm attributable to the conduct of the respondent if an order is not made, the court shall make the order unless it appears that:

1. The respondent or any relevant child is likely to suffer significant harm if the order is made; and
2. The harm likely to be suffered by the respondent or child in that event is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

The Court may exercise its powers under this section if it considers it just and reasonable to do so.

Now you know the law, lets see how it applies in my case:

I have Bipolar 2, a fact known by the Judge and one she determined made me, in her words “not a very well woman”. Not well enough to look after my 3 children apparently. The Judge dismissed the reports from 3 expert witness Consultant Psychiatrists who made it very clear that I pose no danger to myself nor to the children nor to anyone else and that I manage and cope with my ‘mild’ Bipolar extremely well. They all advised the Judge that I am capable of looking after my children as my illness is properly medicated and under control.

Now, given that I have Bipolar 2, presumably putting me out on the street with no home to go to would be pretty damn stressful for me which could set off a Bipolar episode. It may also cause disruptions to my sleep, not knowing where I was going to be living as well as screw up my carefully adhered to daily routine (necessary to keep my moods as stable as possible). Not to mention now needing to find a job.

So should I be ordered to leave despite the harm that I (the Respondant) may suffer? Well, I guess that depends on whether the Judge decides that there will be “significant harm” to the children if I stay or to my husband (the applicant).

What does “significant harm” mean?

Looking at the facts: I don’t hit the children, I don’t neglect them – quite the opposite. I adore and love my children very deeply. I look after them emotionally and physically, meeting their day-to-day needs: I cook proper meals for them, I wash their clothes and dress them, I do their homework with them, take them to the doctors, administer my son’s insulin injections, take them to their sports matches, take them to and from school. I don’t have a drink or drug problem nor have I ever. I don’t even smoke.

No reports by the school to social services, no criminal charges or actions and the children all have had excellent school reports. Moreover, my husband has continued to go out to work full time leaving me in charge of looking after the children without nanny help since last September. Presumably then he thinks I can look after them otherwise he would have given up his job or insisted on having a nanny.

WHAT IS SIGNIFICANT HARM?

Will my husband (the applicant) suffer “significant harm” if I stay? What would this be? Upset because we may argue ocasionally?

Aaaah, but here comes the “harm”: my husband and I argue – badly and often in front of the children. Does this constitue “significant harm” to the extent that I should be removed from the house because of the “significant harm” the children are suffering when they hear their parents rowing? Of course the children of any marriage suffer when parents argue which is horrendous for them. But, lets face it, parents who remain married and living together often argue horrifically – does the court think they should be forced to live separately because of the harm being done to the children. Of course not. So why is this case different?

How is the effect of our co-habitation in an acrimonious marriage to be measured on the children?

So far, it is my husband saying that the children are “suffering” due to our co-habitation. How does he prove that or doesn’t he need to? The judge who will be hearing this is the same judge who believed everything my husband said so far. I think she will probably just accept that he thinks the kids are suffering from my presence and so that will be enough to exclude me. The fact that it takes 2 to argue and that he is often the one who provokes the arguments seems to be irrelevant; it is my presence apparently, not his, that is causing the problem according to him.

Which brings me to the next question then: how will she determine the effect of chucking me out of my home on me? She is obliged to consider this under the provisions of the Act.

If the Judge decides that the children will suffer significant harm if I stay, she has fulfilled the first test. She then has to look at the second test:

 If the harm likely to be suffered by me or the children  is as great as, or greater than, the harm to my husband caused by my conduct if I have to leave, then the order shouldn’t be made.

So, if the judge considers that my remaining in the home will cause my husband or the children greater harm than the harm it will cause me to leave, then she can order me to go.

Given that the children have made it abundantly clear that they don’t want me to leave, it seems to me that the person most likely to suffer “significant harm” in this situation is me as I have Bipolar and this needs careful consideration. If  I thought the children would be suffering, I would go. But I don’t believe they are and they tell me that they want me to stay with them.

I know that my husband is suffering from the stress of our marriage but he is adding to this by bringing these court proceedings and refusing to give me money to rent somewhere. He continues to berate me and to bully me thereby continuing the stress. What effect does this stress have on him? He says he cannot sleep and that he has a patch of exzma on his leg. I know then that he is stressed. However, given that he does not have an illness to manage and I do, surely the effect of the stress on him is less than it is on me?  I also cannot sleep and it is well known that stress and lack of sleep is a major problem for sufferers of Bipolar as it can trigger either a depressive episode or a manic episode. Exzma or Bipolar? Mmmm…….

But maybe I’m misguided and selfish?

Will she even think of me in all this?

How do I prove that chucking me out on the street with no money to go to a new home will cause me “significant harm”?
Any comments gratefully received. Anyone of you readers ever experienced this or know of someone who has?

I need to put together a defence against being chucked out of my home and I have to do it this week – ANY ADVICE, HELP gratefully received.

Technorati Tags: bipolar, affective, bipolar+disorder,
discrimination, caffcass, child+custody,
occupation+order,custody, depression, divorce, family+law, high+court, judicial+discretion, lobby, mental+health, mental+health+prejudice, mental+health+prejudice, antidepressants, childrens+act, mothers+rights, social+services,