Family FAQs
DIVORCE
How long can the divorce process take?
On average this will take six months but we can take steps to resolve matrimonial financial matters at the same time. It may be quicker, particularly if there are no children involved and if there are no financial issues to resolve. More complex cases may take longer. We have found that six months is the average.
On what grounds can my partner or I file for divorce?
There is only one ground that you can file for divorce – that the marriage has broken down irretrievably prior to issuing the petition. This is established by satisfying one of the following five facts:
Adultery – If you are able to prove that your husband or wife has had sexual intercourse with another member of the opposite sex to whom they are not married, or if they admit to it and are prepared to confirm that in writing (This fact is not currently available to couples in a same sex marriage)
Unreasonable behaviour – This is a subjective test based upon what the Petitioning party believes is unreasonable about their spouse and does involve submitting to the court a statement of case setting out 4-5 paragraphs of the spouse’s unreasonable behaviour
Two years separation – This is where you have lived apart for 2 years and the separation was in recognition that your marriage was over. The respondent to the Petition (person receiving the Petition) must consent to a divorce based upon 2 years separation if this fact is to be relied on.
Five years separation – Same criteria as above, but the divorce can proceed even if the other party does not consent.
Two years desertion – This is the most uncommon fact upon which a court will proceed. One case in which we were involved, concerned our client, the wife, who came home from work, found a note from her husband saying he had left. She has heard nothing further from him, and that was about ten years ago!
Can I get a divorce if I am in Civil Partnership?
No. You cannot get divorced if you are in a Civil Partnership but you can dissolve it as long as you have been registered as Civil Partners for more than a year. Civil Partnership requires the same procedure as divorcing couples with the only main difference being that a Civil Partnership cannot be dissolved on the basis of adultery.
Will I need to attend court as part of the divorce proceedings?
If the proceedings are undefended, it is very unlikely that you will need to attend Court unless the issue of who pays for the Divorce is an issue in which case the judge can hear representations on the issue of costs from both parties prior to the pronouncement of the Decree Nisi. However if a fault based Petition is issued ie one based on the fact of adultery or unreasonable behaviour then the Judge will usually make a costs order against the respondent.
CHILDREN
What is a Child Arrangements Order?
A child arrangements order (CAO) is an order that regulates arrangements for a child that relate to any of the following:
1. with whom the child is to live, spend time or otherwise have contact
2. when the child is to live, spend time with or otherwise have contact with any person
Contact simply means the time that a child spends with an adult. There are several ways that contact may take place:
1. direct contact between the child and the person named in the order
2. overnight staying contact
3. supervised contact, and
4. indirect contact through letters or cards
A CAO may show the person with whom a child is to live, but not specifically where.
A CAO may provide for the child to live with one parent only or it may provide for the child to share their time between both parents. An order will usually say in detail how the child’s time is to be divided between the parents.
Who can apply?
A child’s parent can always apply for a CAO. Other people may apply for a CAO for a child if they either satisfy the requirements or if they get the consent of everyone with parental responsibility or permission of the court.
How long does a CAO last?
A CAO that regulates with whom the child is to live and when will last until the child is 18 (unless the court orders an earlier date).
A CAO that regulates when the child is to have contact with a person will usually end when the child is 16 but in limited circumstances can last until the child is 18.
Mediation – do I have to attend?
Before you can apply to the court you are now required by the rules governing these applications to attend a meeting with a mediator to see whether mediation might be suitable, rather than using the court.
This requirement applies unless certain exemptions, including issues relating to the safety of the child or domestic violence, apply. We can assist you with making a mediation referral.
All our family lawyers are experienced court advocates who will be pleased to assist in the preparation of your case and representation at court.
What is parental responsibility?
Parental responsibility is defined in law as:
‘…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’
People with parental responsibility are entitled to have a say in major decisions about the child, such as:
- where the child should live
- where they should go to school
- what religion they should practice
- what name they should have
- the giving or withholding of medical treatment, and
- dealing with their money or property
Parental responsibility does not entitle someone to interfere with day-to-day decisions such as what the child wears, their hobbies or choice of TV programmes etc.
Parental responsibility lasts until the child reaches 18 or marries between the ages of 16 and 18. You might hear parental responsibility referred to as ‘PR’.
Who has parental responsibility?
A child’s mother automatically has parental responsibility and does not lose it if she and the child’s father separate, whether or not they were married.
A father who is married to the child’s mother when the child is born will automatically have parental responsibility. A child’s father can also acquire parental responsibility by marrying the mother after the child’s birth.
We are a same-sex couple – who has parental responsibility?
For same-sex couples, the situation is more complicated. This depends on how the child was conceived and in what family circumstances. If this is relevant to you, please ask our family lawyers to assist you.
After my divorce, will I be able to take the children abroad on holiday?
Providing your ex-partner consents you will be able to do so. In the absence of consent, it is necessary to obtain permission from the court. Don’t forget Scotland and Ireland are abroad!
The rules say a person with a CAO that says the child(ren) live with them can take the children abroad for a period of less than one month. Otherwise, rules require where a CAO is in force no person may remove a child from the UK without either the written consent of every person with parental responsibility or the permission of the court.
Is legal aid available for children issues?
Unfortunately legal aid is no longer generally available for private law children disputes, except in very limited circumstances involving domestic violence.
We are the only solicitors in West Norfolk able to offer a legal aid service where the circumstances allow.
CHILD MAINTENANCE
The Child Maintenance system has been recently reformed. The Child Support Agency is closing and being replaced by the Child Maintenance Service. For parents receiving money through the Child Support Agency it is unlikely that their cases will be closed before 2015.
Anyone who has their case closed will have to apply to the Child Maintenance Service should they require assistance collecting child maintenance. Since 11 August 2014, parents using the government’s Child Maintenance Services ‘Collect & Pay’ facility to pursue their former partners for child maintenance will lose a percentage of each payment.
Under the changes, individuals registered as parents with care will see 4% deducted from their instalments while the ex-partner paying the maintenance will have to pay a 20% surcharge.
How do I enter into an agreement with my partner for payment of Child Maintenance?
Recent changes have put pressure on many parents to reach a voluntary agreement as to what should be paid in the way of child support to avoid the ongoing charges. It is recommended that any such agreement is drafted under the guidance of a family lawyer allowing it to be enforced by either party.
How is child maintenance calculated and what can I do to benefit me?
The calculation of Child maintenance is based on the following steps:
- the paying parent’s gross income
- the things that effect income (eg pension payments or other children you support)
- the Child Maintenance rates based on the gross weekly income of the paying parent
- the number of children needing child maintenance
- the weekly amount of child maintenance for any other children
- how often those children stay overnight with the paying parent
Contact us immediately following the breakdown of your relationship to advise and discuss your options. We can then calculate how much maintenance your children will be entitled to.
UNMARRIED COUPLES
My partner and I are not married but live together in our home. Am I entitled to anything if we separate?
Yes. However you have to bear in mind that if you have lived together as husband and wife but have never married, the terms of your separation will be significantly different to those of a married couple.
You will be entitled to your share of the property that you own with your partner and we will advise you depending on the circumstances of your case. It may be the case that the property you own together may need to be sold. If you purchased it on a 50:50 then it will be rather likely that the net sale proceeds would be divided on 50:50.
If we are unmarried when we separate, what will happen to our children?
We can ensure that the Court can make an order for capital to be provided for the benefit of your children, for example to provide a home for the children until such time as they finish their education. If you succeed in such claim, any capital made available for your housing would need to be repaid to your partner once the children have finished their education.
What about maintenance?
If you have children, maintenance will be payable and will be assessed by the Child Maintenance and Enforcement Commission (formerly Child Support) if not agreed. That sum will remain payable (albeit subject to variation from time to time) until the children have finished their education. Maintenance is not payable for you as a cohabiting partner and that is the case even if you have been living together as man and wife for many years and have children together.
What can I do if my partner refuses to leave my property after we have separated?
If you have not entered into an agreement as to how long you are going to live together and separate, then when coming to separate and leaving a property this will depend on how the property is owned or rented. If it is in joint names, then it may be hard in the short term to force somebody to leave the property. In the long term, you will need to speak to us to discuss your best options as this can depend on whether there is a threat of violence, violence involved and if there are children in the property.