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Alison March of Coyle White Devine Solicitors in Amersham (www.cwd-law.com) continues her advice on divorce and separation. Here she looks at the legal side, if other avenues haven’t worked.
Every case a solicitor deals with is different. So each case will have its own solution based on its own unique set of facts. However, the Court has to follow the Law and decisions that have been made in earlier cases. Every solicitor therefore will have those in mind when advising you.
The Law relating to children is governed by the Children Act 1989 and is the same whether the parents are married to each other, live together or are in a same sex relationship. This introduced the notion of residence, contact and parental responsibility, rather than the old fashioned custody and access. The emphasis is very much on the interest of the child being paramount and the Court will only make a decision if it is in the child’s best interest to do so. In the majority of cases the parents make their own arrangements and there is no need for the court to become involved. Essentially they just get on with it.
If the parents are unable to agree about who a child will live with, or how much time a child should spend with the non resident parent, an application can be made for a residence or contact order. In appropriate cases, the Judge will appoint a CAFCASS Officer who will meet with both parents and the children and file a report (usually a few months down the line) with recommendations. The recommendations are usually adopted by the Judge if the parents are still unable to make a decision.
There is one ground for divorce and that is that the marriage has broken down irretrievably. This can be for one of the following reasons:
A solicitor will discuss the process in detail with you, but if the matter runs smoothly and the financial aspects are resolved without difficulty the divorce could be completed in 4 to 6months.
As part of the divorce it will of course be necessary to separate the family’s financial assets. The court has a checklist it has to go through to ensure that the children’s needs come first and that any order (or agreement) is fair.
Again, a solicitor will discuss your case in detail with you, but consideration needs to be given to:
If your spouse or partner is violent or abusive to you, you may be able to apply to the court for a non molestation order (for personal protection) and possibly for an occupation order which could force your partner to leave the home for a specified period of time. Occupation orders are not easy to get and if you require advice on obtaining any form of injunction against your partner, the more detailed information you have the better.
The Law concerning children and injunctions is the same as for married couples. It is however very different in relation to financial matters. If you are not married to your partner, you cannot claim maintenance from them. They do of course have to pay maintenance for the children. You have no claim on any assets owned solely by your partner (except in rare cases regarding property) nor does he on yours. So, if he has a pension and you don’t you cannot make a claim on it.
If you jointly own things, most commonly the house, how they are divided depends on a number of factors including who contributed what to the purchase price and whether an agreement was drawn up at the time reflecting that. Unfortunately the situation is not always straightforward and specialist advice should be taken if this situation applies to you.
If you have children with your partner, you may be entitled to apply to the court (having tried the options listed above) for a capital sum or even a property for your children. This will depend on the financial situation of you and your partner and will not be appropriate in every case. Usually, the court will require a very good reason to require a father to pay a lump sum to the mother (it will be only for the benefit of the child and not for anything that the mother might require). If the Court orders the father to provide a property for the child, it would usually be transferred back into the father’s name once the child reached the age of 18 or finished their education. Once again, specialist advice should be taken.