2. Does joint residence of children really work and what does it really mean?

Joint residence does work when there is a good working relationship between the parents. It rarely works if one parent is unable or unwilling to compromise or cooperate. It does not mean necessarily that the children’s time is split 50-50 between the parents but is used to reflect the status quo if there is shared care and both parents are actively involved in the children’s upbringing.

3. I don’t agree with my wife/civil partner’s grounds for divorce. What can I do?

When a relationship has broken down and one party has filed for divorce/dissolution it can be difficult to accept their reasons for the breakdown. In the UK there is one accepted cause for divorce and that is the irretrievable breakdown of the marriage. This can be proven in one of five ways: –

Adultery

Unreasonable behaviour 

Desertion

Two years separation with consent 

Five years separation

The advantage of pursuing a divorce under the grounds of unreasonable behaviour is that unreasonableness is a subjective test i.e. if you consider particular incidents to be unreasonable and the Judge agrees with you then the divorce can go ahead. However, the disadvantage is that this effectively lays blame on the other party for the breakdown of the relationship. The same points apply for the dissolution of a Civil Partnership, save that adultery cannot be used as a ground.

Facts of Divorce If your partner had chosen unreasonable behaviour and you do not accept what they say you can advise the Court that you accept that the marriage has broken down, agree to a divorce but do not agree to the Petitioner’s version of events. You can submit a letter to the Court at this stage but it will serve no purpose other than to state your version of events.

If, however, you feel strongly about your ex partner’s reasons you can issue a cross petition which means that there are effectively two petitions for the same divorce going through the Court.

This process is costly and time consuming and something for which you will not get Legal Aid. Please note before you make this decision that it makes no difference to the financial settlement or divorce who or what the reasons are unless there have been serious allegations of conduct.

4. I want my children to live with me, how can I make that happen?

The Court will only make an order involving children if it is absolutely necessary. Therefore, if you are in agreement as to where the children should live Court proceedings are unnecessary. If, however, you are in dispute the Court will need very good reasons to disrupt the status quo.   

This means that if the children are with their mother and there are no concerns it is unlikely that they will be moved and vice versa. If Court proceedings were issued in these circumstances it is possible that your contact could be increased and that a CAFCASS officer would be appointed to fully investigate the family circumstances. The Court will always focus on what is in the child’s best interests and not what the parents prefer. 

5. What will CAFCASS’s (Children and Family Court Advisory and Support Service) be? 

The CAFCASS officer is a fully qualified and independent professional who is appointed by the Court to meet with the families and if necessary produce a report if an agreement cannot be reached. The report will usually take three months to complete, during which time they will meet with you, your ex partner and often the children.

It is usual for the Court to follow the recommendation of the CAFCASS officer unless there is good reason for not doing so.

6. What role if any will the Local Authority have?

Children’s Services will only become involved if they believe that the child is at risk of emotional or physical harm. Their involvement can be triggered if the police are called to a domestic incident at the home and the children are present. This is because the police have a legal duty to inform them. If there are several referral from the police or other sources e.g. the children’s school, then a social worker will contact the family to investigate further.

Anyone can make a referral to the local authority if they have concerns about a child’s well being. This includes an absent parent.

7. Can my ex partner stop me from seeing the children?

Not without good reason.  It is widely accepted that it is in the children’s best interests for them to have a good relationship with both parents. If, however, your ex partner refuses to allow this to happen then a contact application will need to be made to the Court.

CAFCASS will once again be appointed to investigate the parent’s reasons for withholding contact if an agreement cannot be reached. If, however, those reasons are upheld, contact may be refused.

8. Can I get an injunction and what protection can I get from the Court?

A Non Molestation Injunction can be granted in one of two ways.

This is either an emergency Ex Parte basis (with no notice to the other side) or an On Notice basis where the other party will be invited to attend. If dealt with on an emergency basis the other party will be invited to attend the second hearing as will you. This is to ensure that both parties are given the right to a fair trial.

There are two types of legal protection available to women experiencing domestic abuse. Domestic Abuse is dealt with under criminal and civil law which is dealt with in separate Courts. The civil system aims at protecting the victim whereas the criminal system is designed to punish the offender.

A victim of domestic abuse can make an application to the Family Proceedings Court based at the local Magistrates Court or at the County Court.

Depending on the severity of the charges criminal cases are either heard in the Magistrates Court or the Crown Court. Protection and security are available in all Courts to protect the victim and any witnesses.

The options open to the victim depend on the severity and nature of the abuse, the type of relationship between victim and perpetrator and the strict burden of proof required by the criminal Court compared to the civil Court. In criminal proceedings the standard is set out beyond all reasonable doubt whereas in civil cases the standard is set at the balance of probabilities. Unless the Civil Court are dealing with a breach of an existing injunction at which point it will use the criminal standard.

The wishes and feelings of the victim will also be taken into consideration however if the police have not been notified the Civil Court will require an explanation as to why.

9. Can I get my ex partner out of our house?

This is actually quite difficult especially if there are also children living in the house. Usually a partner can only be ousted if there is actual or a threat of violence. The court might then be persuaded to issue an occupation order. These are quite difficult to get and are only usually considered when the perpetrator has some where else to go.

If parties are married or have a civil partnership then the matrimonial home will be dealt with as part of the financial settlement. If it is your intention to remain in the home after the divorce then we would advise that you stay in the home when the marriage breaks down and ask the other party to leave if possible.

If parties are not married and live together then the home if jointly owned, needs to be dealt with by a TOLATA (Trust of Land and Appointment of Trustees Act) Application. This can be costly and time consuming, but will allow the courts to consider what should happen to the property.

Cohabitation agreements drafted when parties move in together can avoid later court proceedings. We would also advise that a separation agreement be drafted once parties have split, this is to prevent further come back in the future.

10. What is parental responsibility and do I have it?

Parental responsibility is a legal concept used to determine who has a say in the important decisions made about a child, such as how they are educated, what medical treatment they have, what name they are known by and what religion they are brought up in.  

If the parents of a child are married or have jointly adopted a child then both parents have parental responsibility.   In the case of unmarried parents the mother always has parental responsibility for her child however the father only has this responsibility if he later marries the mother or he acquires parental responsibility through one of the following three routes:-

– By being named on the birth certificate of the child if the child is born on or after 1^st December 2003;

– By a parental responsibility agreement with the mother; or

– By a parental responsibility order made by a Court

When the Court are deciding whether to award Parental Responsibility to a father, they consider the degree of commitment the father has shown towards the child, the degree of attachment which exists between them and the father’s reasons for applying to the Order. 

Fathers who are named on the birth certificate registered before 1^st December 2003 do not have parental responsibility for that child and must therefore acquire the same by way of a parental responsibility agreement or parental responsibility order.

11. Can my ex partner change the children’s name without my consent?

A parent can change the name of a child or young person under the age of 18 so long as they have the consent of any person who has parental responsibility for the child.     If the consent of an absent parent cannot be obtained it may still be possible to change a child’s name if the resident parent can show that she/he has made every effort to obtain the consent.

If only one person or parent has parental responsibility for the child then that person can lawfully change the child’s name.   However permission of a parent, regardless of whether they have parental responsibility or not for that child, is usually advised as it may be possible for the father to challenge the change of name through the courts if he could show that it was not in the child’s best interest.

12. How much will it cost?

This will usually depend on the circumstances of your case.  If the matter is straight forward and is resolved quickly, you can expect the costs to be relatively low.  If, however, the matter becomes extremely contentious and is not finally resolved until a final hearing at Court, then the costs can be considerable.

A straight forward and undefended divorce or dissolution will probably be in the region of £500.00 to £700.00 plus VAT, and disbursements.  The disbursements of the divorce itself are currently as follows:- Petition fee at the beginning: £300

Swearing fee (approximately 2 months from the beginning): £7

Decree Absolute fee (at the end – 6-9 months from the beginning): £40

As far as the financial aspect of divorce or dissolution is concerned this is much more difficult to predict.  If an agreement is possible the costs could be £2,000 to £5,000 plus VAT plus disbursements.  If an agreement is not possible and your case has to go to court the costs could be between £10,000 – £20,000 plus VAT plus disbursements. 

Depending on your financial circumstances you may be entitled to receive Public Funding.   Initially you will be assessed as to your eligibility to receive advice under the Legal Help, Help at Court and Family Help (Lower) Scheme.  The Legal Help Scheme does not cover work in relation to an application to the Court and if you wished to pursue the same you would need to apply for a full Public Funding Certificate.  Please note that you may be assessed as having to pay a contribution to the same depending on your disposable income.   It is also important to note that this is not a gift and must be viewed as a loan that may need to be repaid at the end of your case if you have recovered or preserved property or monies. 

For any further information on the issues discussed above or on any other family law related topics, please contact Kate Edwards of Wendy Hopkins Family Law Practice LLP on 02920 236669, or make an appointment at our office at 13 Windsor Place, Cardiff. Alternatively email Kate at kedwards@wendyhopkins.co.uk