Helen asks:

I separated from my husband four years ago after 16 years of marriage and now live with my children (aged 17 and 14) in a rented flat. When we separated we didn't sort out any financial settlement other than the £320 a month maintenance that my husband pays for the children. I was declared bankrupt in April 2008 because of debts my husband and I had (after we separated he stopped paying the mortgage and other bills). I now have no pension, no property and no savings. My husband has moved in with his partner and seems to have enough money for quite a nice lifestyle. I'd like a divorce and would also like to know if I could ask for a share of his pension.

The system in England and Wales for financial claims on divorce is discretionary.  This means that there is no fixed formula and that the judge who hears a financial claim on divorce may exercise a discretion and make the award that he/she feels is appropriate. However, there are guidelines that come from court decisions that have been reported.

Where there has been a long marriage it would be usual for each person to come out of a divorce in broadly equal financial positions and seventeen years would certainly be regarded as a long marriage.  If your husband has a pension (or more than one) you may be entitled to a share and these days the court can make orders dividing pensions between a divorcing couple.  You would though need to start divorce proceedings to get that sort of order.

I see from your question that you and your husband agreed the amount that he should pay for the children and that he is paying £320 a month.  The Child Maintenance and Enforcement Commission guidelines may help you to asses whether that is reasonable (these are on the Commission's website).  The basic calculation for two children is 20% of the payer’s after-tax income. 

It is possible that you would also be entitled to maintenance in your own right if your husband’s income is much higher than your own. What will be really important for you is to find a way of agreeing the terms of any settlement with your husband.  Using a solicitor to go to court for this sort of stuff can be very expensive and could end up costing you more than you recover.  However, it will probably be worth getting some legal advice so that you are better informed about your position.  I suggest that you visit the web site of the family law group Resolution where you will be able to find details of specialist family law solicitors close to you.  The good thing about Resolution solicitors is that they have a code of conduct that is intended to ensure that they deal with the divorce process constructively. 

You might want to ask the solicitor you see about the possibility of mediation.  This is a process that would involve you and your husband sitting down with a neutral third party who would help the two of you reach an agreement.  This can often be a really good way to get to an agreement.

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