Arrangements for Children after Divorce or Separation
If you are contemplating Divorce or Separation from your Partner, your first concern will probably be about where your children will live and how they will retain contact with both parents.
When you separate from each other, you will both continue to be parents. Therefore it is important to make sure that the process of unravelling your marriage or relationship does not stop you being able to co-operate on what is best for your children. A constructive approach through the Divorce or Separation will lay the best foundations for the children to feel settled with the new family relationship.
Negotiation is important as agreements reached together are more likely to work in the long term.
You will be expected to attend a mediation information and assessment meeting (“MIAM”) with a mediator to determine whether the issues in dispute are capable of settlement through mediation or any other non Court based form of dispute resolution. Certain cases are exempt from the requirement to attend a MIAM meeting. Once a mediator has seen you and your spouse/ partner, a form FM1 will be signed to indicate whether or not mediation is appropriate for your case. If mediation is not appropriate or does not result in concluding the issues, Court proceedings may be issued.
The Children Act 1989 is the main piece of legislation dealing with family disputes about children. The Children Act says that the child’s welfare is the paramount consideration when the Court considers any question in relation to the upbringing of a child. The Court will apply what is known as the “Welfare Checklist” to help it make its decision. The Welfare Checklist looks at:-
● The wishes and feelings of the child (considered in the light of his/her age and understanding).
● His/her physical, emotional and education needs.
● The likely effect of any change in his/her circumstances.
● His/her age, sex, background and any characteristics which the Court considers relevant.
● Any harm which he/she has suffered or is at risk of suffering.
● How capable each parent is of meeting his/her needs.
The Court will not make any Order relating to a child unless it is satisfied that making an Order would be better for the child than not making an Order.
The legal process of ending a marriage. The procedure begins with a Petition and ends with a Decree Absolute which dissolves the marriage. The timescale to complete the process differs from case to case.
You cannot issue a Divorce Petition unless you have been married for more than one year. Although it does not matter where you were married, it does matter where you and/or your spouse or your spouse are living at the time the Petition is issued.
The only ground for Divorce is that the marriage has irretrievably broken down. This is proved by establishing the existence of one of five factual circumstances. These are:-
● 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;
● Your spouse has deserted you more than two years ago;
● You have been living apart from your spouse for two years or more and your spouse agrees to the Divorce;
● You have been separated for five years or more.
You only need to attend a Hearing dealing with the Divorce if the proceedings are contested.
Court proceedings in Family Law are usually held in private.
From 27.04.09, media representatives are able to attend Family Proceeding Hearings. The Court will be able to restrict media attendance if the welfare of the child of the family requires it or for the safety and protection of the parties or witnesses. The media representative will not be able to identify the parties or children in such proceedings and they will not be entitled to receive or peruse Court documents referred to during the course of the proceedings without the permission of the Court.
The media will not be able to attend Hearings which are conducted for the purpose of judicially assisted conciliation or negotiation.
The Divorce process is in two stages – a “Decree Nisi” and a “Decree Absolute”. A Decree Nisi is an Interim Order granted by the Court when the ground for Divorce is established. After a period of time it can be converted into a Decree Absolute which marks the end of the marriage. You can stop the process at any time before the Decree Absolute is issued.
Neither party to the marriage is free to re-marry until the Decree Absolute has been issued by the Court.
Financial Arrangements on Divorce
The settling of financial matters on Divorce is sometimes far more complex that the Divorce itself.
The Law in this area is very flexible to enable Courts to achieve fairness depending on the individual circumstances of each case.
If you cannot reach an agreement about financial matters then you will be expected to attend a mediation information and assessment meeting (“MIAM”) – see the comments about this above.
The main piece of legislation is the Matrimonial Causes Act 1973 which sets out the factors to be considered by the Court in deciding what is fair:
● The welfare of a child of the family;
● The income, earning capacity, property and resources of each person;
● The financial needs, obligations and responsibilities of each person;
● The standard of living enjoyed by the family before the breakdown of the marriage;
● The age of each person and the duration of the marriage;
● Any physical or mental disability;
● The contribution made by each person to the welfare of the family including looking after the home and bringing up children;
● The conduct of each person but only if it is so bad it would be unfair to ignore it;
● Any serious disadvantage to either person which would be caused by ending the marriage.
Because the Court has a wide discretion in applying the Law, it is better to avoid the uncertainty of a Court Hearing. Most people are able to agree how their finances should be split with each having the help of a Solicitor to advise on what might be a fair division, highlight the options for achieving this and negotiate on their behalf.
Often a family’s main asset is the family home. Given that the needs of any children are the first consideration, it will be important to make sure that a suitable home is maintained for them. It may be that the family home can be sold with the proceeds divided between the couple (not necessarily in equal shares). The property could also be transferred to one spouse with the other receiving a greater share of other assets. A less common approach could allow one person to stay in the house with the other keeping an interest in the property, receiving their share when it is sold. This might be when the youngest child has finished full time education.
The law allows a pension fund to be shared on divorce. Pension sharing will not be appropriate in all cases and where it is an option, the fund will not always be divided equally. This is a complex area and it is highly likely that specialist financial advice will be needed on how sharing can be achieved in each individual set of circumstances.