Divorce and separation

Subterms

    More stories

    • 50 Shares129 Views

      in Children

      September Stowe talks webinars

      by

      Stowe talks is a range of support tools including podcasts, videos and webinars, designed to help people going through a relationship breakdown and all the multi-faceted challenges this brings.
      Supporting children emotionally through divorce
      Thursday 22nd September 17:30 – 18:30
      Join Stowe talks webinar with family lawyer Sarah Barr Young and guest Sarah Weller a family relationship coach and parenting consultant as they discuss emotional support for children through divorce and separation including:

      What are the fundamental concepts for children’s well being
      How to talk to your child about divorce and create a positive vision
      What are the main stressors for a children and how you can help them
      Finding a successful co-parenting model even if you aren’t currently parenting on the same page
      What to do when your ex-partner doesn’t show up to co-parent
      Q&A opportunity to ask your questions.

      Book your free place on the Supporting children through divorce webinar

      Supporting male survivors of domestic abuse
      Thursday 20th October 17:30 – 18:30

      Join our family lawyers Jake Mitchel and Sarah Barr Young and they welcome guest Tom Nash, Divorce & Business Coach, to explore the challenges of male domestic abuse, available support for male victims of domestic abuse, as well as:

      The different types of domestic abuse
      The challenges & issues for male survivors
      The signs & red flags of male domestic abuse survivors
      What can friends, family and colleagues do?
      How to access the available support
      Q&A opportunity to ask your questions.

      Book your free place on the Supporting male survivors of domestic abuse webinar

      Understanding economic abuse and how to deal with it

      Wednesday 30th November 17:30 – 18:30
      Join us and special guest Rosie Lyon a prominent campaigner for better financial and banking support for survivors of domestic abuse as they discuss how to:

      How economic abusers operate
      How it can impact your financial future
      Rosie’s personal experience of abuse and how she overcame the challenges
      Guidance on how banks deal with economic abuse
      Practical tips to navigate banking
      Support available for survivors
      Q&A opportunity to ask your questions.

      Book your free place on the economic abuse webinar More

    • 100 Shares119 Views

      in Children

      9 divorce myths debunked by a divorce lawyer

      by

      There are some common myths about divorce that remain steadfast despite being unfounded and incorrect in the eyes of the the law. Stowe managing Partner Amanda Phillips-Wylds debunks the top 9 divorce myths.
      Top 9 divorce myths
      When you decided to get divorced you might have heard or read lots of conflicting stories about what to expect about the process. It can feel very confusing. Based on my years of practice, I have put together a list of the 9 most common misconceptions I hear from my clients to help you reset your expectations and move forward with clarity.
      Myth 1 – Divorce always ends in court battles which leave spouses angry and bitter.It is very rare for spouses to have to attend court. Since the arrival of no-fault divorce spouses can no longer object to divorce proceedings being filed. Court intervention would only be necessary if couples are unable to settle disputes over financial claims, but this is still a last resort and before they get to this stage, they will have had to have tried other options such as mediation.
      Myth 2 – Divorce is always expensive.Costs can escalate quickly when it comes to resolving financial claims, especially if spouses cannot agree and take the case to court. However, they can undertake the divorce proceedings themselves to avoid incurring legal fees, alternatively many solicitors offer a fixed fee to act in divorce proceedings which will not be disputed.
      Myth 3 – Celebrities are special and so get ‘quickie’ divorces.The court processes divorce petitions in the order in which they are received. No divorces are singled out to be rushed through.
      Myth 4 – Assets are always shared equally on divorce.The starting point for division of assets is a 50/50 split, this is known as the ‘yardstick of equality’. However, it will not be appropriate in all cases to share the assets equally. There is no set formula which the court uses to make a decision, rather it has a list of factors it must consider and give weight to before arriving at a fair split. These include:

      the welfare of any minor child
      the income, earning capacity, and property each of the spouses has or is likely to have in the foreseeable future
      the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future
      the standard of living enjoyed by the family
      the age of each spouse and the duration of the marriage
      any physical or mental disability of either spouse
      the contributions which each of the spouses has made or is likely to make in the foreseeable future to the welfare of the family, including contributions in looking after the home or family
      the conduct of each spouse, if that conduct is so bad that it would be unfair to disregard it
      and finally the value of any benefit which a spouse will lose by reason of the divorce e.g. a pension.

      Myth 5 – Once you receive a Final Order that’s it.Unless there is an approved court order dealing with the financial claims spouses have as a result of their marriage, then either spouse could make a future claim against the other’s assets, even several years after they have been divorced. Having a Final Order does not end financial claims. There must be a court order that provides for a clean break.
      Myth 6 – There is an automatic right for the mother to have the children living with her upon separation.Upon separation it is for the parents to decide who the children will live with and how much time they will spend with the other parent. A court will not become involved unless the parents cannot agree, and they ask the court to make the decision for them. If a court does become involved its decision is based upon what it thinks is in the best interests of the child, and it has a checklist of factors to measure this against.
      As society changes, parenting roles are evolving from traditional norms and in more and more cases, fathers are taking a greater role in the care of their children, it is no longer unheard of for children to live with their father upon separation. There is no ‘standard’ arrangement for parents to follow when agreeing how much time children will spend with their father or mother once a relationship has broken down.
      The arrangements may differ during holidays and term time, and they normally evolve over time and as the children grow older. 50/50 shared care is becoming a more common arrangement between separated parents.
      Myth 7 – The parent with ‘custody’ of a child has greater rights than the other.Who a child lives with has no bearing on each parent’s role in making important decisions in the child’s life, or their role in caring for the child provided they each have parental responsibility.
      If both parents have parental responsibility, they both have an equal say in all the important decisions in the child’s life, for example in relation to education, medical treatment, religion, and property. The child’s mother automatically has parental responsibility for the child. The father will have parental responsibility if he was married to the mother at the time of the birth, if he is named on the child’s birth certificate, or if he has a Parental Responsibility Agreement with the mother or an order from the court.
      Myth 8 – If they are not receiving child maintenance, the parent with whom the child is living can stop the other parent seeing the child.There is no legal basis to stop the parent who must pay child maintenance from seeing their child if they stop paying. The remedy is to contact the Child Maintenance Service for a calculation.
      Myth 9 – Unmarried women have rights over property as Common Law Wives.There is no such thing as common law marriage in the UK, and so there is no automatic right to share assets between unmarried couples upon relationship breakdown. If a couple is going to cohabit or buy a property together it is important for them to obtain legal advice on what shares they will each have in that property and how this will be recorded.
      Get in touch
      For more information about divorce or separation please do get in touch with our Client Care Team using the details below or make an online enquiry More

    • 75 Shares179 Views

      in Children

      Mediation and the Family Courts backlog

      by

      The Family Justice System is currently undergoing significant changes to try and reduce the strain and backlog faced by the family courts.
      The introduction of no-fault divorce and extended funding for mediation for disputes concerning children (£5.38million this financial year, raising the total invested in the scheme to £8.68million since March 2021) demonstrates a continued commitment to resolving matters away from the court arena. 
      The Family Mediation Council (FMC) voucher scheme introduced in March 2021 provides families in England and Wales with a £500 voucher to put towards the cost of mediation. The vouchers can be used by parents attending meditation to discuss the care of their child or children. By enabling divorcing couples and parents to resolve their disputes without litigation, it will enable the court to utilise its limited time on cases that require the adjudication of the court.  
      The emphasis on mediation and no-fault divorce is reflective of the desire for most separating couples to deal with the practical consequences of their separation in a private and constructive way. 
      Since the introduction of no fault divorce, the number of divorce applications have increased; HMCTS received 3,000 divorce applications in the week following the introduction of reforms in April, which is a 50% rise on the weekly average. 
      This demonstrates people’s desire to wait for the law to change, so that they can proceed in this new neutral non-adversarial way.  There is no longer a requirement to provide a reason for the marriage coming to an end, giving people greater respect for their private life, as well as removing the blame element of divorce previously seen. 
      This change in law sets a more amicable tone from the start, and therefore places people in a better position to make decisions about the children and their finances.
      Cafcass statistics show that in 2020/21, there were 97,496 children involved in private children proceedings, an increase of 23.1% since 2016/17. In public law, there were 143,129 children, an increase of 16.4% since 2016/17, with cases taking an average of 45 weeks to conclude. 
      These increases are not sustainable, for the courts or for the families facing long delays. The need to reduce the number of families in the Family Justice system is vital. The focus on solutions achieved through agreement benefits both families, and the Family Justice System, and the court are increasingly robust at encouraging parents to consider alternatives to litigation. 
      Recently in the case of Re B (a child) (Unnecessary Private Law Applications), his Honour Judge Wildblood QC said:
      ‘Do not bring your private law litigation to the family court here unless it is definitely necessary for you to do so,’ he said. ‘You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.’
      The commitment to further funding for mediation follows research that mediation helps families reach solutions and outcomes that are best for their children. 
      The FMC conducted a survey which showed that mediation is successful in over 70% of cases. The funding enables parents to access mediation in circumstances where it would otherwise be unaffordable, and encourages people to proceed with this option. 
      It has raised the profile of mediation, as FMC research further showed that after an initial meeting, three quarters chose to mediate, and that 
      “This is despite the fact that many don’t know anything about mediation, or think their partner is so unreasonable that mediation will never work”. 
      It should not be surprising to hear that parental preference is to reach an agreement, rather than battle it out in court, and ultimately receive an order imposed upon them by a Judge who doesn’t know them or more importantly their child. 
      Most parents are acutely aware that while their marriage or relationship has come to an end, their relationship as parents has not. And however, hard it may be for them as an individual, as a parent they want to do the best for their child. 
      The option to attend mediation provides parents with the opportunity to communicate, explore the issues, discuss the options and resolve the matters that are important to them. 
      A Judge is unlikely to hear arguments on the appropriate amount of screen time for a child, the choice of gifts each parent buys for their birthday, or how the parents will explain to their child about their new routine now that their parents live apart. 
      All these things can be discussed and agreed upon in mediation. As one Judge said recently: 
      “I cannot order people to be nice. However, in mediation, parents can discuss matters and hopefully improve their communication so that they have the tools to resolve disputes, thus avoiding court now and in the future. The court must make decisions in the best interests of the child. However, court proceedings are often protracted, emotionally and financially expensive, and consequently damaging to the child and their parents. 
      Mediation is not appropriate in every case, nor is it always possible for parents to reach agreements. We need our Family Justice system to work effectively and efficiently for those families. 
      For example, in cases where there are allegations of domestic abuse, safeguarding concerns such as drug or alcohol abuse, parental alienation or protracted disputes. The court is a finite resource, but there must be access to our Family Justice System. 
      Lord Neuberger said access to justice “has a number of components. First, a competent and impartial judiciary; secondly, accessible courts; thirdly, properly administered courts; fourthly, a competent and honest legal profession; fifthly, an effective procedure for getting a case before the court; sixthly, an effective legal process; seventhly effective execution; eighthly, affordable justice.”
      The focus on dispute resolution options, such as mediation, is not designed to take away access to justice, but to create a Family Justice System that provides families with options to resolve their disputes in a way that is most appropriate for their circumstances. 
      The introduction of no-fault divorce and continued funding for mediation enables the focus to move from conflict and confrontation to communication and solutions, and enables our Courts to work more effectively for those who need to litigate. 
      Previously published on LawNews More

    • 88 Shares129 Views

      in Children

      Travelling abroad with children after divorce FAQs

      by

      While there is much to organise when travelling abroad with your family, if you are a separated parent or you have a different surname to that of your children, there are some additional factors to consider to help ensure you have the appropriate permission and can avoid potential issues. Stowe Senior Associate Zoe Carter has compiled a list of FAQs to guide you through travelling abroad with children after divorce.
      Do I need permission from my ex-partner to travel abroad with our children after divorce?
      Yes. You must have permission from those with parental responsibility for the child, to take them abroad.
      The only exception to this is where the parent travelling with the child or children has a child arrangement order stating that the children must live with them. In this instance, they can take the child aboard for up to 28 days without the consent of the other parent.
      Why do I need permission from my ex to travel abroad with our children?
      Where you have shared parental responsibility for your children, it’s essential to obtain permission to take your children abroad. Failing to do so could lead to criminal charges for child abduction.
      What is classed as ‘abroad’?
      Abroad is defined as anywhere outside of the UK. The UK does not include the Channel Islands or Isle of Man.  There are 4 countries that form the UK: England, Wales, Scotland and Northern Island. However, it’s worth remembering that they do not all share the same legal system. If you remove a child from one legal system within the UK to another legal system, this may effectively amount to going “abroad” such as travelling from England or Wales to Scotland.
      How do I get permission from my ex to travel abroad with our children?
      You can obtain permission to travel aboard with your children directly from your ex-partner or through solicitors if more appropriate. Permission should be given in writing.
      How do I know if I have parental responsibility for my children?
      Parental responsibility is automatically given to mothers and is given to fathers who are either named on the birth certificate of the child or married to the mother when the child is born. Parental responsibility can also be granted via court order or by entering into a Parental Responsibility Agreement.
      If you are the only parent with parental responsibility and there are no orders in place, permission is not needed from your ex-partner to travel abroad with your child.  It is however recommended that you advice them of your plans.
      What documents should I take with me when I travel?
      You could be asked for evidence of your permission to travel with your children and your relationship to them, at a UK or foreign border. So, to avoid unwelcome issues and ensure that you’re prepared it’s advisable that you take all of the relevant documentation. This includes:

      Written consent to the trip from your ex-partner – ideally with a copy of the their passport
      Proof of your own relationship with the child such as their birth or adoption certificates
      Divorce or marriage certificate if your surname is different from your child’s
      Full contact details of the consenting parent
      The specifics of your trip.

      While this sounds like a lot of preparation, and risky carrying important documentation, without the relevant paperwork you may find yourself refused entry into your destination of choice.
      Can I travel abroad when I have a different surname to my child?
      It is common for parents to have different surnames to their children. However, there are still instances where parents with different surnames to their children are questioned by UK or overseas border control and asked to provide evidence that they are legally travelling with their children. Understandably, these checks are to prevent child abduction but nevertheless can cause disruption to consensual family holidays.
      Carrying the right documentation can help to alleviate potential stress, upset, or even a missed flight! Official agencies will need to be satisfied with your relationship with the child, so it’s advisable that you carry:-

      Your child’s birth or adoption certificate
      Proof of name change – if your name has changed since your child was born you may also need to take evidence such as a change of name deed or marriage certificate
      It may also be beneficial to carry an expired passport, if this is in the name you held at the time of your child’s birth.

      Depending on the age of your children, It may also be worth giving them some warning that they could potentially be asked questions by immigration officials and to reassure them that they do not need to worry and should answer honestly.
      Is there a limit on how long I can go away for?
      There can arguably be no limit on the duration of your holiday, provided you have the permission of your ex-partner who also has parental responsibility for your children.
      If you have an order which states that the child lives with only you, unless the court order says you can’t, you can take your child abroad for 28 days without permission of the other parent.
      What if my ex won’t agree?
      If your ex-partner has parental responsibility and does not consent (and you do not have an order confirming the child lives with only you) you will need to make an application to court for the court’s permission before you can travel.
      The court will consider whether the holiday is in the best interests of the child and, in most cases, will grant permission for abroad travel provided there are no concerns about a child not being returned.
      Useful Links:
      UK Gov – Permission to take your child abroad
      Travelling abroad with your children
      Get in touch
      For more information about travelling abroad with your children after divorce or separation please do get in touch with our Client Care Team using the details below or make an online enquiry More

    • 50 Shares159 Views

      in Family Law

      No-fault divorce has arrived

      by

      As we welcome the arrival of no-fault divorce in England and Wales, Stowe Senior Partner Julian Hawkhead reflects on what this family law reform means for divorcing couples and how it impacts the role of family lawyers.
      “It’s the end of the world as we know it and I feel fine” sang the US band R.E.M back in the late ‘80s, capturing a sentiment felt by many family lawyers this week as no-fault divorce is introduced.
      The advent of no-fault divorce is the biggest change to impact marital or civil partnership breakdown in decades. The Divorce Dissolution and Separation Act 2020, after years of campaigning by various stakeholders in and around the world of family law, brings about the removal of blame or the requirement to live separately for at least two years as reasons for divorce.
      The new changes take effect from 6th April 2022 and it is hoped will bring about a paradigm shift in the way separating couples approach the process of divorce.
      Does taking the blame out of divorce mean the end of family lawyers?
      Not at all. For many years family lawyers have recognised that the reasons given for a couple separating have had little, if any, material impact on the future plans and arrangements that need to be made following on from their divorce. That one spouse or civil partner behaved in such a way that the other party could no longer be reasonably expected to live with them would not itself be a factor in separating financial resources or making arrangements for the children. A barrister I worked with for many years would often tell me that the family court is not a court of morals.
      Turning the focus to the future
      As a family lawyer for over 20 years, I have seen many clients who have focused so much on their past that it created a distraction and shifted focus away from resolving the important issues that needed to be addressed. When anchored to the past, separating couples can often find themselves unable to move forwards, either emotionally or practically, and yet the court’s have expressed a lack of interest either through irrelevancy or simply a lack of time to do so.
      Mr Justice Coleridge in a judgement published back in 2002, sought to discourage parties from undertaking a general “rummage through the attic of their marriage to discover relics from the past” in order to assert a greater level of contribution to the marriage than the other party. The same could be said for any individual who has had to harvest a list of reasons why they believed the marriage broke down as if to satisfy a judge’s morbid curiosity when reviewing the divorce petition. Save that the judge had no such curiosity, but was instead simply performing an out of date statutory duty to check that sufficient boxes had been ticked to enable a divorce to proceed.
      However, from 6th April the requirement to rely on behaviour or a period of separation to justify divorce ends and is replaced with a single assertion that the marriage has broken down irretrievably. It is not an assertion that can be contested by the other person and the reasons for disputing a divorce are limited to questions relating to the validity of the marriage or jurisdiction.
      A simpler divorce process
      The divorce process has also been simplified, removing rather archaic language such as “decree nisi” and replacing it with a simpler more functional description of “conditional order”.
      It needs to be said that this simplification of the legal process is not making it easier to get a divorce. There is and never has been such a thing as a “quickie divorce”, a phrase often used by the media and much maligned by people working in family law. The new process will take at least 6 months to conclude with a waiting period of 20 weeks from the date of issuing the divorce application before the applicant, or with the new law, both parties as joint applicants, can apply for the conditional order.
      This 20 week period is designed to give the couple time to pause and reflect on their marriage and to also focus on addressing the practical arrangements that need to be made such as agreeing arrangements for the children and making progress towards a financial settlement. Parties will be actively encouraged to reach agreement wherever possible, using mediation and other forms of out of court dispute options where possible.
      The role of family lawyers
      Interestingly, when Stowe Family Law conducted a survey a couple of months ago it showed that the majority of people when asked about no-fault divorce were unaware of the imminent changes. A significant number still believed that bad behaviour during the marriage was and should be a factor that would influence the outcome of other issues in the divorce. A divorce process which removes any element of blame or causation to the act of ending your marriage may be difficult for some people, but it is a responsibility that rests on the shoulders of family lawyers and all those who attend to the needs of people going through relationship breakdowns to keep their attention and focus fixed firmly on looking forwards rather than looking backwards.
      Whilst no-fault divorce will not remove the pain that people feel when their marriages or civil partnerships end, it will hopefully help them get through the legal process of separation with less emotional impact and help prepare them for the next chapter of their lives.
      Get in touch
      For more information on no-fault divorce please do get in touch with our Client Care Team using the details below or make an online enquiry More

    • 63 Shares159 Views

      in Family Law

      No-fault divorce and financial settlements

      by

      The impact of no-fault divorce on the settlement of finances
      This week, the new no-fault divorce law is introduced in England and Wales. As well as transforming divorce law, these overdue changes will also be applicable to the dissolution of civil partnerships.
      It is a view held by many in the family law sector that the fault-based divorce law in England and Wales was outdated and no longer fit for purpose. Under previous law, the petitioning party was required to blame the other party for the divorce if they had not been separated for a period of two years or more, which was a common occurrence.  In many cases, this led to unnecessary animosity and upset. The move to no-fault divorce removes the need for blame, and is therefore a welcomed change.
      But what impact, if any, will no-fault divorce have on resolving the financial aspects of a parties’ marriage? Stowe Solicitor Melanie Quinn tells us more.
      Finances and divorce
      When a marriage comes to an end it is crucial that as part of the divorce process, the parties’ finances are also resolved, and that they reach a final settlement on how their assets should be divided which is transferred into a legally binding court order.
      This is vital to ensure that both parties have financial security and certainty going forwards.
      Reaching a financial settlement is necessary regardless of financial circumstances because in entering into a legally binding agreement as part of a divorce, a party is protecting their financial position not just at the time of the divorce, but also in the future.  For example, they can protect any future assets they may accrue and equally protect themselves from being responsible for any debt their ex-spouse may incur in the future.
      Issues with the old fault-based divorce law
      Previously, the most common fact relied upon for divorce was “unreasonable behaviour”.  This required the petitioning party to give examples of the other party’s behaviour, which they considered to be unreasonable.  Such allegations needed to reach a certain threshold to persuade a court that the marriage has broken down irretrievably.  Therefore, in many cases, the petitioning party had to raise unpleasant marital issues, when they would otherwise have no wish to.
      Even for the most thick-skinned respondent, it was unpleasant to read details about themselves of this nature, never mind for these allegations to be recorded in a court document.
      There was an understandable common misconception that the allegations made would have a bearing on the financial outcome of the divorce. However, the reality is that only in very extreme circumstances will a court consider a party’s behaviour when determining a financial settlement.  Therefore, the unreasonable behaviour particulars were a very unpleasant means to an end and it was difficult for parties to understand why these needed to be raised in the divorce petition, only to then be put aside in the next stage of the divorce when they came to resolve the finances.
      Furthermore, the court places a big emphasis on parties attempting to reach a financial agreement by consent, without the court becoming involved or indeed, without the court making the ultimate final decision on how the assets should be divided. Given this emphasis on the parties reaching a financial agreement amicably, it is easy to see why this was somewhat at odds with fault-based divorce law. This was arguably not conducive with the parties then reaching a mutual agreement on how their assets should be divided and understandably, if one party is upset about allegations made against them in the divorce petition they may be less inclined to take a fair and reasonable approach when negotiating the divorce finances.
      No-fault divorce law and financial agreeements
      Without the need for blame, it’s likely that the new no-fault divorce law will have a very positive impact on the financial aspects of a divorce.
      Under the new procedure parties will even be able to make a joint application, meaning from the outset couples can work together where they have reached the conclusion that their marriage has broken down irretrievably.  They will be able to take a cooperative and collaborative approach to the entire divorce process which can only be a good thing.
      Of course, there will still be cases where financial matters become contentious, regardless of the reason for the divorce.  However, in these circumstances, having a divorce process that required one party to apportion blame, arguably only made matters worse.
      The new cooling off period
      As part of the reform to the current law, a minimum cooling off period is going to be introduced. This will be a period of 20 weeks between the initial divorce application and the conditional order (previously known as decree nisi).  This is in contrast to the old process where as soon as a respondent had acknowledged the divorce petition the applicant could apply for the decree nisi.
      It is hoped that this new cooling off period will allow parties time to resolve the finances of their marriage. They will then be in a position to lodge a consent order recording the financial agreement they have reached with the court, once the conditional order is made.
      The reality is that reaching a fair financial agreement can take time, and this pause in the divorce process therefore better reflects this fact, ensuring that financial matters are not rushed through because one party has a desire to end the marriage as soon as possible.
      Of course, there will be cases where even after the conditional order is made a financial agreement has not been reached. However, it is hoped that in those circumstances, the extended time frame will allow time for some clear headway to be made in addressing financial matters.
      Reaching a conclusion
      In most cases, the reason for divorce has no bearing on financial matters.  Any increased animosity caused by the reason for divorce was therefore only likely to be a hindrance to reaching an amicable financial resolution.  The divorce law reform is therefore welcomed for the positive impact it will have on couples, allowing them to act in the best interests of both parties and therefore, in turn, any children of the marriage.
      Get in touch
      If you would like more information on finances and divorce please do get in touch with our Client Care Team using the details below or make an online enquiry More

    • 113 Shares149 Views

      in Family Law

      Child Arrangements Orders – what you need to know

      by

      A Child Arrangements Order is a legal court order that helps to ensure the welfare of children. They are most commonly used in cases where divorcing or separating parents have not been able to agree who their children will live with, or how they will see each parent. Here Stowe Solicitor Zoe Carter explains more.

      What is the purpose of a Child Arrangements Order?
      The purpose of a Child Arrangements Order is to legally define with whom a child is to live (previously termed residence) and with whom they should spend time (otherwise known as contact). This essentially sets out who has the responsibility for care of the child and when. Whilst Child Arrangements Orders replace ‘residence orders’ and ‘contact orders’, parents with these previous types of orders do not need to re-apply for a new order.
       
      What does a Child Arrangements Order cover?
      The Child Arrangements Order will cover who the child/children will live with and how and when they will see each parent. For example, it may say that the child/children should live with both parents on a shared care basis, or it may say they should live with one parent and spend weekends with the other. It will also likely cover arrangements for holidays including trips abroad and school holiday periods.
      A Child Arrangements Orders can also set out other types of contact and frequencies including phone or video calls, and letters and cards.

      Who can apply for a Child Arrangements Order?
      There are 2 categories of people that can apply:
      1 Those who have an automatic right to apply – this includes:
      a) Any parent regardless of whether they have Parental Responsibility or not (whether they are named on the birth certificate)
      b) A Step-parent (including those in a civil partnership);
      c) Any person with whom the child has lived for at least 3 years (this does not have to be continuous)
      d) A Local Authority foster parent
      e) A relative of a child who has lived with them for a period of at least one year preceding the application (for this purpose, a relative is deemed to be a grandparent, sister, brother, aunt or uncle)
      f) If you already have a child arrangements order in your favour, you can also apply straight away.
      2 Those required to have Leave (the courts permission) to apply. This covers anyone not automatically entitled to apply in section 1 above. Usually, this category would cover anyone in the child’s life that does not have Parental Responsibility which would typically include grandparents – unless they are considered a guardian for the child, they will need Leave of the court.
      The court will consider a number of  factors when deciding whether or not to grant leave including the nature of the application; the applicant’s relationship and connection with the child, any risk that the proposed application may disrupt the child’s life to such a degree that the child would be harmed, if a child is being looked after by a Local Authority the court will also consider their plans for the child’s future and wishes/feelings of the parents.

      When should I apply for a Child Arrangements Order?
      A Child Arrangements Order should be applied for when an agreement cannot be reached on the care of the child.
      Before an application is made it is important to try and agree arrangements with the other party.  Mediation can also assist parties in trying to reach an agreement, however if it is not possible to agree, then it will be necessary to issue an application for a Child Arrangements Order. In most cases, before an application is made to the court parties are required to attend a Mediation Information Assessment Meeting (MIAM) to establish whether the parties might be able to reach an agreement, rather than going to court.

      Is a Child Arrangements Order legally binding?
      A child arrangements order is legally binding on the parties until the child reaches 16 (or 18 in exceptional circumstances).
      If either parent breaches an order and does not comply with the terms, this amounts to contempt of court and there can be very serious consequences including fines, an order for compensation to be paid, community service and even imprisonment.

      Can a Child Arrangements Order be changed?
      Yes – an application can be made to the court to vary a Child Arrangements Order if the order is no longer fit for purpose or in the child’s best interests.
      It is important that an application is made to vary the terms of an Order rather than breaching the order. If you breach an order the other party can apply for the enforcement of the order, and you could be held to be in contempt of court. If this happens you could face serious consequences including fines, an order for compensation to be paid, community service and even imprisonment.

      How will no-fault divorce affect Child Arrangements Order?
      No-fault divorce will have no impact on any Child Arrangements Orders and will not affect how the court considers what is in the best interests of the child.
      However, the introduction of no-fault divorce removes the requirement to assign blame during the divorce process, which typically caused increased animosity and unnecessary conflict between parents, creating an unnecessary knock-on effect for children. Enabling couples to divorce without blame creates a more amicable foundation from which to move forward, meaning that separating parents can prioritise the future arrangements for their children.

      Get in touch
      If you would like more information on Child Arrangements Orders please do get in touch with our Client Care Team using the details below or make an online enquiry More

    • 75 Shares169 Views

      in Children

      A complete guide to no-fault divorce

      by

      As no-fault divorce draws closer we look at how this family law reform will work, what has changed, and what the benefits are.

      What is no-fault divorce?
      No-fault divorce is the name given to the divorce law reform being introduced in April 2022 in England and Wales that removes the need for blame as a basis for divorce.

      What was divorce like before no-fault divorce?
      Previously, even if both partners mutually agreed that the marriage was over, no wrongdoing had taken place, or both parties were equally ‘at fault’, there was a legal requirement to assign blame to just one party if they wished to divorce in under two years (the minimum separation period).
      Based on the five grounds for fault-based divorce, couples had to spend a minimum of two years separated before they could file for divorce. The alternative was to cite behaviour or adultery as their grounds for divorce to demonstrate that their marriage had irretrievably broken down, but they then had to assign blame to one party, making allegations and disclosing the full details in their divorce application.

      What were the five grounds for divorce?

      Behaviour – The most common grounds for divorce as it covered many types of ‘unreasonable behaviour’ and, while details of the behaviour were necessary, it didn’t require admission from your ex-partner.
      Adultery – which included the need for either your ex-partner to formally admit to sex with someone else , or for you to prove it had occurred. In addition, the law’s definition of adultery only referred to opposite-sex affairs, so could not be applied if your ex was in a same-sex relationship.
      Separation, two years – You have lived apart for two years, and the other party consents to the divorce.
      Separation, five years – In this case, the consent of the other party to the divorce is not required.
      Desertion – fundamentally different to separation; it referred to abandonment.

      How is no-fault divorce different?
      With no-fault divorce the only ground for divorce is that your relationship has ‘irretrievably broken down’. No other justification is needed to grant divorce.
      You are no longer required by law to apportion blame to either you or your ex, fit your reasons for separation into one of the five reasons for divorce, formally accept blame if a divorce petition has been made against you, or provide proof of wrongdoing to support your application. You will also no longer be able to contest a divorce if you are the respondent.
      In addition, under the new divorce law, if you and your partner both agree that your marriage has broken down irretrievably, you will be able to make a joint application for divorce.

      Why is no-fault divorce being introduced?
      Every relationship is unique, as are the reasons that marriages breakdown. Often the reason for the end of a marriage is the accumulative result of a combination of factors felt by both parties, rather than the deliberate actions of just one.
      To have to distil years of unhappiness into one crystallised reason, and attribute blame to just one party, is unconstructive at best and can destroy what’s left of the relationship at a time when cooperation is needed most.
      No-fault divorce paves the way for amicable collaboration, rather than conflict and stress, helping to reduce the overall mental health impact of separation and ease negotiations. It means parties can find a way to both move forward positively, and allows them to focus on the central issues, such as children, finances, and property.

      How does no fault divorce work?

      Under the new law you, or you and your spouse, can make an application for divorce on the grounds that your marriage has broken down irretrievably.
      After a minimum of 20 weeks, the applicant(s) can confirm that they wish to proceed with the divorce.
      The court can then make a Conditional Order (previously called a Decree Nisi).
      After a minimum of 6 weeks, the court can make the Final Order (previously called a Decree Absolute).

      How long will a no-fault divorce take?
      While the new divorce process can take a minimum of 26 weeks, this does not factor in the time needed for administration, processing, and negotiations.
      It was estimated that a typical uncontested fault-based divorce could take anywhere between six to eight months, and it is expected that the no-fault divorce process will take a similar amount of time.

      What are the benefits of no-fault divorce?
      Divorce is difficult enough without the need to assign blame, which ultimately only makes things more difficult.
      No-fault divorce means:

      You no longer need to navigate agreeing which one of you should be ‘blamed’
      You don’t need to air the sensitive details that led to the end of your marriage
      There’s no need to gather enough unpleasant behaviour to qualify as ‘unreasonable’
      Respondents can no longer contest the application (although there will still be some reasons why the courts ability to deal with the divorce can be challenged)
      Conflict is reduced and puts couples in a better position to move forward
      Domestic abusers cannot contest divorce, effectively trapping their spouse
      Relationships are more likely to be amicable between parents post-separation, creating a more positive home environment for children
      Couples no longer have to wait 2 or 5 years to evidence prolonged separation, allowing them to move on sooner
      As before, no divorce and dissolution applications can be made during the first year of marriage.

      Are there any disadvantages of no-fault divorce?
      The aim of no-fault divorce is to make the divorce process simpler and less harmful to relationships. However, in some cases, apportioning blame can feel just and a way to hold an ex-partner accountable for wrongdoing. For example, in cases where one partner has committed adultery, or has been abusive, the no-fault based divorce process provides a way for them to divorce without the partner at fault accepting responsibility.

      Will a no-fault divorce affect what I am entitled to?
      No. Even before no-fault divorce, it was rare for the circumstances that led to separation to have any impact on the outcome of the divorce, such as division of financial assets and property or child arrangements. This will not change under no-fault divorce.
      However, it’s likely that by avoiding the need for blame couples will be able to reach amicable and mutually favourable agreements more easily.

      How will no-fault divorce affect financial settlements?
      No. Divorce does not automatically end a couple’s financial commitments to each other. It’s vital that divorcing couples resolve their finances by reaching a financial settlement which is then transferred to a legally binding court order. No-fault divorce will not change this or impact the outcome.
      Reaching a financial settlement can take time and it’s hoped that the introduction of the 20 week ‘cooling off’ period within the no-fault divorce process will allow parties ample time to resolve the finances of their marriage before the divorce is finalised.

      How will no-fault divorce impact child arrangements?
      Parents who divorce must come to an agreement about what’s best for their children. A Child Arrangement Order covers who the child/children will live with and how and when they will see each parent.
      No-fault divorce will have no impact on any Child Arrangements Orders and will not affect how the court considers what is in the best interests of the child. With reduced acrimony and conflict, no-fault divorce paves the way for a more positive future for families with divorced parents.
      Reaching an agreement on child arrangements can take time and it’s hoped that the introduction of the 20 week ‘cooling off’ period within the no-fault divorce process will allow parties ample time to explore and resolve before the divorce is finalised.

      When does no-fault divorce become law?
      No-fault divorce will begin on Wednesday 6th April 2022. From that date, the no-fault based process will apply to all divorce applications in England and Wales.
      Find a list of no-fault divorce key dates here.

      Get in touch
      For more information on no-fault divorce please do get in touch with our Client Care Team using the details below or make an online enquiry More