LIVERSEDGE 01274 861 096 HARROGATE 01423 637 272
FREQUENTLY
Answers to the most regularly posed questions...
ABOUT DIVORCE
- Can I sort out divorce proceedings without a solicitors?
- The simple answer is yes you can. There are however pitfalls to be aware of and particularly where financial issues are concerned it is important to take independent and expert advice.
The process of divorce is largely a paper exercise where the Court is concerned. However, if you do represent yourself through the process and do not deal with the financial aspects of your separation then whilst you may have changed your legal status, you and your ex partner will still retain financial related claims against the other unless or until these claims are dismissed through filing a consent order with the Court, if financial issues can be agreed, or through making an application to Court to determine financial issues.
Family Law is not straight forward in terms of financial rights and remedies. The decisions you make are ones which will impact upon the rest of your life. It is therefore very important that you obtain specialise advice from the outset. Our job is to with you to achieve the best possible outcome for you going forwards. - What are the grounds for divorce?
- There is only one ground for divorce in England and Wales which is that your marriage has irretrievably broken down.
There are 5 facts which underpin this ground and you need to rely on one of them. The 5 facts are as follows:-
1. The other party has committed adultery and you cannot tolerate living with them
2. The other party has behaved in such a way that you cannot reasonably be expected to live with them
3.Two years separation and consent
4. Desertion
5 years separation - What is a Decree Nisi?
- Decree Nisi is the mid-way point of divorce proceedings. It is also the point at which the Court can consider making an order to resolve financial matters.
- What is a Decree Absolute?
- Six weeks and one day after Decree Nisi has been pronounced, the person issuing the divorce can apply for Decree Absolute. On the date that Decree Absolute is pronounced, the marriage is dissolved.
ABOUT CHILDREN
- Do I have parental responsibility?
- Parental Responsibility (PR) is not about ‘rights’ but about ‘responsibility’ for a child. Whilst any party with PR should be involved in decision making, it does not automatically mean that day to day decisions of the parent with care of the child should be interfered with.
All parties with PR should be involved in important life decisions, such as education, religion, medical treatment and in respect of the child’s name – i.e. one parent cannot just change the child’s name without the consent of the other parent, in they have PR. - What are my rights regarding my children?
- If you are married or you are named on your child’s birth certificate (and you child was born on or after 1.12.2003) then you automatically both have parental responsibility. What this means in practice is that you each have the right to consent to medical treatment and be involved in decisions such as where your child will go to school.
The starting point in law and the key principle under the Child Arrangements Programme which governs private law application is that a child has the right to spend a significant amount of time with each parent providing it is safe and consistent for them to do so.
We work with you to help you whether we act as mediators or by providing legal advice so that we can work out together practical arrangements for the care of your children which work for your children and for your family.
Where there are safeguarding issues then we can help you take robust and swift action to keep you and your children safe from harm. - How do I get parental responsibility?
- Mothers automatically have PR for their child. Fathers automatically acquire PR upon marriage to the Mother.
If a child was born prior to 1.12.2003 and the parents are not married, the Father does not have PR. If born after that date, the Father can acquire PR, but only if they are listed as the child’s father on the birth certificate. PR can also be acquired as follows:- By agreement with the Mother. A form will then need to be completed as necessary and then sent to the Principal Registry of the Family Division in London.
- By an application to Court. Usually the Father will make an application to court for a Child Arrangements Order and this will include that he has obtained PR.
- Can I change my child’s name?
- To change your child’s surname you need the written agreement of every party with parental responsibility (usually the other parent). You will not be able to change your child’s surname without their agreement, unless you have a Court Order confirming that you can.
It is the view of the Court that a child should retain the name it has on its birth certificate unless there are exceptional circumstances. - Can I take my child abroad?
- If you are divorced/separated from your child’s other parent, then you will need written permission from them (and any other party with parental responsibility), before you can take your child abroad.
If written consent is provided, it should be taken with you, together with your child’s birth certificate as evidence of your relationship. An exception to this may be if you have Child Arrangements Order in place.
If permission is needed, but is not given, an application will need to be made to Court, should you be unable to resolve matters yourself, through mediation or with the assistance of solicitors. You must however be aware that the other parent can also make an application to Court to stop you from taking the child abroad as well. - Can I choose my child’s school alone?
- If the other parent has parental responsibility, both parents must be in agreement about which school the child should attend and this is same even if your child lives with you and you are there primary carer.
If an agreement cannot be reached between you, the other options available to you are to try mediation, discussions through solicitors or, as a last resort, make an application to Court.
ABOUT FAMILY MEDIATION
- Do I have to mediate?
- No. Mediation is a voluntary process however you do have to attend the MIAMS appointment which is the pre-court assessment (unless exceptional circumstances apply) before issuing any application to Court for matters concerning your children or financial issues consequent upon separation.
- When would mediation be unsuitable?
- An important part of the MIAMs appointment is to look at what are the important issues in your case and by meeting you and the other party separately we can assess the scope for negotiation.
In circumstances where we are worried about safety issues relating to your children or to either of you then it may be that we take the view that mediation would not be suitable and we would issue the Court form to enable you to pursue a formal legal route. - What are the benefits of mediation?
- Mediation is far more cost effective than getting involved in protracted litigation which can take months, if not years to resolve and cost many thousands of pounds.
Through mediation YOU retain control over decisions affecting your financial future and the future arrangements for the care of your children.
Mediation as a process is a forward thinking process. It is not about who has done what to whom or when but rather how we can move forward.
If you have children together then part of the process is recognising and helping you to work through the fact that whilst you no longer have a relationship as a couple, you do need really to have a working relationship as parents so that you can continue to make important decisions and attend important events for your children as parents. - Can our children's voices be heard?
- Yes. Some mediators who have undertaken specialist further training can speak to children as party of the mediation processes so that their voices can be heard, whilst recognising that as parents you retain control over the decision making process. Sally, our Harrogate based Director, is a highly experienced and skilled Child Inclusive Mediator and can talk you through the process at the MIAMS appointment stage.
- Is mediation legally binding?
- Mediation is a method of assisting you to work through issues and reach agreements which then can be made legal either by instructing your solicitors to prepare the necessary legal documentation or by the two of you filing agreed documentation with the Court.
The process is really a half way house between negotiating direct with the other party and dealing with matters via solicitors. Mediation is a qualitative choice and is far more cost effective than all negotiations taking place between solicitors.
In children mediations we can help you work through issues such as communication difficulties when said difficulties are typically only made worse via Court proceedings.
ABOUT FINANCES
- Do I have to provide financial disclosure?
- Yes. Through whichever means you resolve financial issues both of you have to provide full and frank financial disclosure as to your respective financial circumstances. Resolving financial issues is a two stage process.
The first stage is to exchange financial information and the second stage is to make informed decisions with you each being aware of the other’s financial position. Even if the two of you were able to sort matters out in person then in order for an agreement to be legally binding it has to be approved by a Court. A Family Judge will not approve a consent order (the legal agreement) without seeing a summary of your respective financial circumstances.
Furthermore, if it came to light that either of you did not provide proper disclosure then a consent order could be set aside at a later date. It is therefore important that from the outset you are open and honest as to your financial position.
Our role is to give you proper and robust advice as to your financial position and work with you to achieve the best possible financial settlement which will be endorsed by the Family Court. - How can I reach an agreement on finances during my divorce?
- There are 4 routes available to you, as follows:
- Agreement between you and your spouse.
- Negotiation through solicitors. An agreement is reached between parties, with the assistance of solicitors.
- Mediation. This a process whereby a mediator will work with both parties to help them come to an agreement as to how assets can be divided.
- Court proceedings. This is a last resort. The Court will determine how assets should be divided if an agreement cannot be reached.
- Agreement between you and your spouse.
- Why do I need a Court Order regarding finances?
- An order is needed to prevent any claims against your finances being made in the future. Without one, either party could still make a claim against the others finances even though the divorce has been finalised and you are no longer married.
- How can I protect my assets before marriage?
- You could consider entering into a pre-nuptial agreement. This is a is formal written agreement entered into prior to marriage, setting out ownership of property, assets and capital and how they are to be divided in the event your relationship breaks down.
ABOUT COHABITATION AND UNMARRIED COUPLES
- What is a cohabitation agreement?
- A cohabitation agreement is a document setting out arrangements between two or more people who have agreed to live together, as a couple or otherwise. It records each party's rights and responsibilities in relation to the property and the financial arrangements between them.
A cohabitation agreement can also be used to record ownership of personal property (including items such as cars, furniture or art) which may be used or enjoyed by both cohabitees when they live together, but are to be retained by the owner if cohabitation ends. - I am not married - can I get maintenance from my ex-partner on separation?
- Where you are not married, there is no jurisdiction in English law for income related payments to be paid to former partners. If you have children however, you are likely to be entitled to child maintenance, which is governed by the Child Maintenance Service.
- I am not married – what are my common law rights?
- There is no such thing as a common law husband or wife in England and Wales. Family law only assists if you are married. If you own property together however or have children together then there are legal remedies which can assist.
For property based issues then you may be able to bring a claim under the Trusts of Land and Appointment of Trustees Act 1996 or under Schedule 1 of the Children Act 1989. The applications which you can make to Court if you are unable to resolve matters via mediation or other forms of negotiation can be costly and it is therefore imperative that you seek advice.
We can discuss remedies available to you specific to the facts of your situation. If you have children together then issues such as where your children will live and how often they will spend time with the other party apply irrespective of your marital situation.