When parties are unable to agree, provided they satisfy certain procedural requirements, they will have recourse to the Courts to help them come to an agreement.
Parents can make applications to the Court under Section 8 of the Children Act 1989 for various Orders, some of which are:
Parental Responsibility Order
Specific Issue Order
Prohibited Steps Order
Child Arrangements Order
A court will only make an order if it thinks that would be best for the child and will look at what is called the welfare principle.
The Welfare Principle
When a court determines any question with respect to the upbringing of a child the child’s welfare is always the court’s paramount consideration (Children Act section 1).
This involves the Court having regard to:
The ascertainable wishes and feelings of the child concerned in light of his age and understanding;
His physical, emotional and educational needs;
The likely effect on him of any change in his circumstances;
His age, sex, background and any characteristics of his which the Court considers relevant;
Any harm which he has suffered or is at risk of suffering;
How capable each of his parents are of meeting his needs;
The range of powers available to the Court in the proceedings.
Some people have the right to apply for an Order, and some people must first get the permission of the court to make the application.
Parental Responsibility (PR)
Parental Responsibility is defined as all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property ( Children Act 1989).
Mothers automatically have PR. If the father is married to the child’s mother at the time of the child’s birth he too will have PR. Unmarried fathers will only have automatic PR if the child was born after 1st December 2003 and the fathers name is on the birth certificate.
An unmarried biological father can acquire PR by entering into an agreement with the mother of his child, by making an application for a Parental Responsibility Order to the Court, or by subsequently marrying the biological mother of his child after the birth.
Other people can also acquire PR for your child, including stepparents, grandparents, or same-sex partners.
If you have PR your most important roles will be to provide a home for the child and to protect and maintain the child.
When parents are separated, they do not lose PR. A separated parent will have to be included in any important decision about the child. This does not apply to routine decisions and consent will therefore not be required for day to day routine matters. If it transpires that you cannot agree with respect to a major decision, like which school the child should go to, any major medical treatment, leaving the country/moving away or changing the child’s name/surname for example, you can apply for a Specific Issue order or Prohibited Steps order to the Court. The Judge will then make a decision which is your child’s best interests.
Specific Issue/Prohibited Steps Order
A specific Issue Order is essentially an order sought from the family court to determine a specific question which has or may arise in connection with any aspect of parental responsibility for a child, where the parents with PR are unable to agree. For example, you may wish your child to go to a particular school, have a particular medical procedure/treatment or change their name.
A Prohibited Steps Order on the other hand is an order granted by the court in family cases which prevents either parent from carrying out certain activities or events with their children without the express permission of the other parent, for example to prevent them from changing the child’s surname or removing them from the country.
Child Arrangements Order
Having PR does not give an absent parent an automatic right to spend time with the child.
A Child Arrangements Order is an Order that regulates with whom a child is to live, spend time or otherwise have contact with any person.
A child’s mother, father or anyone with PR can apply. Other people, like grandparents, can also apply but they will need to get permission from the Court first. You must show you have attended a meeting about mediation first, except in certain circumstances (for example in cases of domestic abuse).
To make any of the above applications, you fill have to fill in a form called C100 Court form. The original form, together with 3 copies and the fee is then sent to the nearest court that deals with cases involving children. If you do not have parental responsibility, you will also need to file a Form C2 for permission to apply for a Children Act 1989 order.
Once the application is issued CAFCASS ( Children & Families Court Advisory and Support Service ) will start making some basic safeguarding enquiries and you may receive a phone call from them. This is followed by a first hearing is called a First Hearing Dispute Resolution Appointment (FHDRA). The parties will be encouraged to resolve the matter by agreement. If this proves unsuccessful, the District Judge will make directions to progress the case to a fuller hearing and may require CAFCASS to prepare a report on the issues at hand. If there are factual disputes the Court may decide to deal with those first and set a Fact Finding Hearing. Once the Court is satisfied with the facts, a Dispute Resolution Appointment is set, which considers the recommendations from CAFCASS and a further opportunity is given to the parties to resolve matters. If matters are not agreed, the case will go to a Final hearing and each party will give evidence under Oath and the recommendations of the Cafcass officer will be considered carefully. The Judge will then make his decision.
It is also worth noting, once you have an Order, it can be varied or enforced by making an application to the Court. Even if an order is proved to have been broken if there is a 'reasonable excuse' this will be considered by the Court. Although each case will depend on the facts, for example, not sending your child because of self-isolation etc, is likely to be a reasonable excuse for not sending a child to contact / back to the other parent. In those circumstances, the parent breaking the Order must still show reasonable steps to minimise the impact, for example, utilising video/telephone contact instead. Alternatively, it may be that the current Order is no longer practical to follow, in which case the application to vary the Order can be made.
In any application or decision, the Court makes, the point to always bear in mind will be the welfare of the child will be of paramount consideration.
To discuss these or any other children or family issues, please contact Shahzea Tahir on firstname.lastname@example.org or visit Rights of Women website on www.rightsofwomen.org.uk for further details on our free confidential adviceline for women.
Women in their 40’s have enough stress as it is, children, work, health, you name it we’ve got it! But for some, an added one can be their relationship with their spouse.
Formalising the termination of a relationship, in other words, getting a divorce or separation, doesn’t have to be a daunting and scary task. If you know the basics, it is much easier to manage, and less stressful to talk about, and in fact formalise.
Most women, will think about separation or termination of their marriage at least a few times in their marriage, for various different reasons. Those that decide there is no other way forward, even after a separation, will need to think about getting a divorce.
Suffice to say, you are not alone. According to the Office of National Statistics (18 October 2017), there were 106,959divorces of opposite-sex couples.
Marriages of same-sex couples first took place on 29 March 2014 and as such the first divorces recorded between same-sex couples were in 2015. Nicola Haines, Vital Statistics Outputs Branch, Office for National Statistics comments in relation to women, “ Our latest marriage figures show that of the 4,850 marriages formed between same-sex couples in 2014, 56% were female couples. In 2016, there were 112 divorces among same-sex couples, with female couples accounting for 78% of these.”
Firstly, to get a divorce in England or Wales, you must have a marriage that is legally recognised in the UK and be married for more than one year. You must then be able to show that the marriage has permanently broken down. In a nutshell, grounds for divorce that show permanent and irretrievable breakdown can be any of the following;
Your spouse has committed adultery and you find it intolerable to live together.
Your spouse has behaved in such a way that you cannot reasonably be expected to live together.
Two-Year Separation with Consent
You have been separated for 2 years and your spouse agrees to divorce.
You have been separated for 5 years.
Your spouse deserted you more than 2 years ago.
Some of the grounds are a little easier to prove than others and will of course depend upon your own personal marital relationship. Your legal adviser will be able to help and guide you through these grounds and establish what is the best one to use in your particular case.
Once the paperwork is completed, your Divorce Petition along with the divorce fee will be sent to the Court. Once checked by the Court, they will issue the Petition and send it to your spouse. Your spouse will then have to complete the Acknowledgment of Service Form, to confirm they have received the divorce paperwork and confirm whether they agree with the divorce proceedings, or whether they intend to defend the divorce.
If undefended, the next step will be to apply for the Decree Nisi, which in effect is asking the court to consider all the documentation submitted in support of your divorce. If everything is in order, and your Decree Nisi is granted, this essentially means the Court has granted you an entitlement to a divorce.
You can then apply for the Decree Absolute. This is the final step to dissolve the marriage and can only be done six weeks and one day after the Decree Nisi is granted. It therefore, gives you some time to be absolutely certain that you want to terminate the marriage.
There will undoubtedly, be other things to think about during the course of the divorce proceedings, for example, arrangements for looking after any children, child maintenance for the children and/or the division of money and property. I will endeavour to touch upon those things in separate articles.
I would like to reiterate that you are not alone!
For readers and subscribers of the Latte Lounge, I run a free telephone consultation clinic (limited to 20 minutes). Please email me on Shahzeat@duncanlewis.comto arrange a consultation about your divorce, separation or any other family law related issues.
It may not seem possible from your vantage point, but it is from mine. I imagine you know people who have divorced and you’ve seen that it’s not a walk in the park. If it’s not your choice and it’s a done deal, well, we can deal with that further down the page, but really?
This divorce thing is not for the fainthearted. Having worked with divorcing couples for over two decades, as well as couples who work on redesigning their rocky relationships in a whole new way, the latter, end up far happier (healthier and wealthier) than their divorcing friends. Believe me, I divorced with two small children, no money, holding down three jobs and studying at the same time. Been there, done that and that’s why I don’t want you to have to go through it, especially when it’s possible to make changes that really work.
Divorce is not like getting over a cold. This is the amputation of your other half combined with open heart surgery and there’s no surgeon at hand to install a new valve, no anaesthetic that could numb the pain and no nurses on standby 24 hours a day to attend to your every need. In fact, your heart must learn how to heal itself. This situation didn’t really happen overnight for at least one of you, and it won’t heal overnight.
It involves children who will be impacted, families that are broken, social structures that fall apart and finances that are often far more stretched and which translate into cut backs that really do change the way you live your life and what you can provide for your children.
Take a look at this list and answer honestly:
If you have thoroughly answered the questions above, looked at all the symptoms that led you to this place and for any reason, you still have even the slightest doubts, then I would urge you to answer the next 7 questions before giving up on your marriage.
Q: Are you sure that the difficulties in your relationship are not just a product of your own thinking and attitudes?
Q: Do you understand your own ‘rules’ for relationship? Are you clear about what you must have in a relationship and can make a distinction between what you want and what you are getting?
Q: Have you clearly communicated your needs to your partner in a way that they can understand?
Q Do you understand enough about your own role in this relationship to be sure that you can and will choose a better partner next time?
Q: Have you tried everything? Have you seen a reputable counsellor or divorce coach individually and together? (I have helped many couples rebuild their relationships, so I know that it’s possible).
Q: Whilst it’s important that you don’t stay in your relationship out of fear or dependency, (and you certainly must not tolerate any form of abuse) have you considered the consequences of divorce on every area of your life and can you see yourself coping with them?
Q: Having answered all the above, are you absolutely sure that you still want to go ahead with your break-up?
Very few divorcees’ sail through this experience unscathed. Fewer still fall instantly into the arms of a perfect partner who is waiting in the wings to scoop them up (and their children) and take them off to ‘Happy Ever After Land’.
I’m not saying this to frighten you, simply to point out that during the difficult times, it’s easy to think that the grass is going to be greener outside your relationship, but that isn’t always the case. All I am saying is, be as sure as you possibly can that you are doing the right thing for you. If you have any doubts whatsoever, get in touch with me so we can look at what can be done to save your marriage.
However, If the prognosis for you is definitely divorce here’s some advice:
Did you know that it doesn’t matter how your partner behaves or what they say or do? Absolutely anyone who wants a drama free divorce can follow specific guidelines to learn how to cope with the emotional and practical stages of the divorce journey.
Why do I say that? How can I say that?
Because there will be a lot of things happening. Financial, emotional, the children, your home, your health, your family etc. Each time something happens you have two options:
1)The Best Way
Awareness of how you react is vital (because if you observe yourself you will see your own reactive patterns and become more aware of your partners reactions. Knowing this will help you decide the best possible response in any given situation.
It’s a paradox that at the worst point in your relationship, understanding your partner is paramount in ensuring you stay drama free and retain your own sanity.
2) The Worst Way
Become unconscious. Go into drama, spill yourself all over anyone who will listen, get overwhelmed, cry, resist your reality and react in whatever is your preferred fight or flight mode. Dig you heels in with your lawyers and spend all your money in retribution, mess up your kids by being weird (their words not mine) and generally fall apart. All guaranteed to make you feel much worse and make your situation seem insurmountable.
Don’t discuss it with your friends. Their good opinions are mostly coming from what they think they would do or have done. You are not them. Their story, past and present, is not yours. A best friend is one who will listen without judgement, put herself in your shoes and as much as she can look at it from your point of view and your partner’s. That’s very helpful to give you a balanced perspective. This is why people work with coaches or counsellors. They are trained to do this.
Do not be the product of the last person you spoke to and act on it. Sleep on every decision (maybe for a whole week) and don’t act in haste.
No one goes into marriage expecting to divorce. There was a time when you loved your partner and your partner loved you. You may still have deep feelings for your ex-partner even though your marriage is no longer viable. But this doesn’t mean that you have to participate in all out warfare. Bearing in mind that neither of you planned for this to happen, how about considering a different way of ending your old love relationship.
How about becoming an example to yourself by divorcing with dignity and emerging with your sanity intact instead of a becoming a warning to others about the miseries of divorce? It’s absolutely true to say that there are people who have been fabulous examples of how to divorce without drama and most of us know of ‘a friend of a friend’ who spends summer holidays with their ex-partners and their children. So how do they do that? Why is it possible for some couples and not for others?
For most couples, (the exceptions being in situations where violence or abuse has reared its ugly head) it has nothing to do with their specific or unique circumstances. It’s simply because no one showed them how to do it differently. Until now.
From where I , I know that it’s perfectly possible to write your own happier ending, because every day I work with couples to give them the skills and tools to do just that. I watch them as they end their own private war, stop defending and justifying their positions and move towards an understanding of what happened, why it happened to finally move forward in peace.
For further information, support or advice you can contact me here via my webiste: www.francinekaye.com