Answers To Family Law & Divorce Law Questions
We understand that family law can be quite a complex and daunting area of law if it’s not your profession, so we decided to build this resource to answer some commonly asked questions about divorce and family law matters.
Please click any question below to reveal the answers.
What if my partner goes bankrupt?
Sometimes people think that if they declare bankruptcy while going through a divorce, they can get out of their financial obligations. This is not the case. Claims and awards stay in play even when one party is bankrupt. However, some assets may be reduced.
If your partner is facing bankruptcy, seek legal advice about how to proceed as soon as possible.
Should I get divorced overseas or in the UK?
This all depends. Every country approaches divorce slightly differently so I would recommend doing some research about the laws of the country you’re living in.
Getting a divorce in the UK would guarantee the process is in English. They are also timetabled and have strict disclosure requirements. Other countries may not.
When getting a divorce, proceedings need to be issued quickly because the country where they are issued first has jurisdiction over the entire process.
Does adultery affect financial settlements or child custody?
Short answer: no. If adultery has been a factor in the breakdown of the marriage, it does not affect your ability as a parent, nor will it change your financial needs.
It is a very emotional subject which can often become very upsetting, but even if it has damaged the marriage irreparably, neither the financial settlement nor the care of the children will be affected.
How long does spousal maintenance last?
Spousal maintenance is not a meal ticket for life as many people assume. It is primarily a way of meeting a person’s needs or can be a form of compensation. After a long marriage, income is meant to help the spouse move on with their lives. Sometimes people have given up a career in order to bring up the children and of course there is no way for them to go back so they will need income.
The crucial question for the courts to consider in each family’s circumstances is of course: how much and for how long?
Sometimes people want to stop paying maintenance which has previously been agreed or ordered by a court. But if you stop without agreement then your wife, or husband, can go to court and enforce the award. If you want to stop maintenance or reduce it, there are ways to do so legally. It may be possible to ‘capitalise maintenance’ for example: to pay a lump sum instead of continuing payments.
Should I apply for decree absolute?
A decree absolute marks the formal end of your marriage. People often hesitate about taking that final step, worrying about the effect it might have on their finances. Whether or not it will affect your financial settlement is the key question.
It’s quite a long shot, but if your spouse dies between the decree nisi and decree absolute and you don’t have a financial settlement in place then you would no longer be his or her widow or widower and might lose out on some automatic benefits that you would have received had you still been married – for example: a widow or widower’s pension or state benefits.
If you’re not going to automatically lose out on benefits, or the financial gain will outweigh any benefits lost, then there is no reason not to go ahead. But remember to seek legal advice.
Should I name and shame my spouse’s partner?
It is quite common, when a relationship has ended due to adultery, for the wronged party to want to name their partner’s lover. They want to name and shame and show that person up for helping to end the relationship.
But the whole aim of the modern divorce process to remove the emotion, to keep things calm and simple. Bringing in a third party adds complication, expense and difficulty.
It is not necessary and judges dislike it.
How do financial divorce settlements work?
The financial settlement is the agreement you reach with your former regarding the division of your money, property and other assets spouse during the divorce process.
The courts will set down the details of this agreement and make it into a binding ‘financial order’.
Solicitors and judges used to refer to financial settlement as ‘ancillary relief’ because they were thought of as being financial relief ‘ancillary’ – ie supplementary to – the divorce itself. Although this phrase is no longer officially used, you may still sometimes encounter the term. The court process which deals with financial issues is now called a financial remedies application.
When the family courts draw up financial settlements, they take certain key factors into consideration. Chief among these are the arrangement for any children of the marriage. In particular, the court will want to know where they will live in future so their housing needs can be properly assessed.
Another major factor will be the length of the marriage – the longer it lasted, the greater the settlement the courts will order. Generally speaking, marriages which have lasted less than five years are considered short, those which have lasted six to 14 years are seen as falling into a ‘medium’ category and any which lasted more than 14 years will be definitely be considered longer marriages.
An additional important consideration is the specifics of each party’s finances. Each half of the former couple will need to fill out a sworn statement, called a Form E, which sets out their future income and financial needs. Be careful to complete this accurately and carefully.
What behaviours or activities constitute adultery?
Under English law, there is a very narrow definition of adultery. It is defined as sexual intercourse between a consenting man and woman when at least one of them is married to somebody else. Other forms of sexual activity do not count as adultery.
Is it adultery if we are separated but still married?
Yes. If you have not yet been officially divorced, any sexual intercourse with other people counts as adultery.
Is adultery grounds for divorce?
Yes. It is one of the five reasons you can cite to demonstrate the ‘irretrievable breakdown’ of your marriage. The others are unreasonable behaviour, desertion, separation for two years with consent and separation for five years, where consent is not needed.
How long do I have to file for divorce after learning of adultery?
Six months. If you wait any longer than that before launching legal proceedings, adultery can no longer be used as a reason for your divorce because you will be seen to have condoned it.
How do I fund my divorce?
Ultimately, funding for a divorce is taken out of the parties’ own assets. This is usually the case regardless of how much it ends up costing, be it a few thousand pounds or, in more complicated cases, as much as several hundred thousand pounds.
There are other methods to secure funding, but legal aid is all but gone for family cases. Options include loans from family and friends, remortgaging property you may hold, taking out personal bank loans or even a maintenance order.
All of these methods have positive aspects and drawbacks, so it’s really a case of what works best for you. When it comes to loans, it is imperative to remember that they will all need repaying, either on settlement or afterwards, depending on the type of finance.
Despite these options, paying the costs of the divorce using your own resources is often the cheapest form of finance.
What are Martin Orders and Mesher Orders?
These two family court orders relate to arrangements for the former matrimonial home following divorce.
A Mesher order is essentially a postponement of the sale of the property for a period of time when it remains occupied by one spouse and the couple’s children. The property remains in both couple’s names until a specified event occurs, at which point it is sold. Events which might trigger the sale include a remarriage, one half of the former couple moving in a with a third party (ie cohabitation) for a period, or the children completing their education or reaching a certain age.
A Martin Order, meanwhile, can be applied when the separating couple have no children. A family court may conclude that the wealthier spouse does not need immediate access to the capital locked up in the couple’s former home, and that the less wealthy spouse would be unable to rehouse themselves if the former marital home was sold and their interest in the property was realised.
These two orders were popular in the 1980s and 1990s, but have since fallen out of favour and are used less commonly today.
Can an Australian borne child move with her mother who is a British citizen to England to stay for good?
Australian law will govern whether relocation is possible if the family is currently residing in Australia. Under the English law, relocation out of the UK is only permitted if consent is obtained of everyone with parental responsibility or with specific permission of the Court. Ultimately, what persuades the Court is whether the move would be in the best interest of the child. The reason for the move would be considered alongside the effect on the left behind parent. The Court looks at the welfare checklist contained in the Children Act 1989 to guide their decision. It is likely that the Australian law in this area is similar to the UK law, however it would be advisable to seek the guidance of an Australian lawyer.
Can you stop a violent ex from seeing his child?
After the implementation of the Children and Families Act 2014, there is a presumption that contact with both parents is in the best interest of the child. Although a parent could stop contact with the violent ex, they cannot stop them for applying to the Court for a child arrangements order to facilitate contact with their child/children. If an application was made the Court would have to decide if it were suitable to allow contact with the ex. Although it may not be suitable too allow children to have contact with a violent ex, it may not be the case that because they were a violent partner, that they will be a violent parent.
So long as the violent parent did not allow the children to be witness to violence, then they may still be able to be a good parent. Furthermore, contact may be allowed the courts if there is absolutely no risk to the children. The Court takes into the motivations of the parent seeking contact, the effect of that contact upon the abused parent and whether contact would ultimately be in the best interest of the child in accordance with the Children Act 1989. It may be that the Court will order supervised or indirect contact until it is satisfied that the violent ex can be trusted.
Can I give limited access for my children to see my ex husband’s new partner.
It is understandable that after the breakdown of a marriage, parents often find it hard to allow their ex’s new partner to be involved in their children’s lives. However, as hard as it may be the Court would be extremely reluctant to prevent a child having contact with the new partner as it is accepted that people inevitably move on. Contact arrangements (now child arrangement orders) can be made by the Court upon application, and can come with any number of conditions attached.
However, for the Court to limit contact between your children and your ex’s new partner there would have to be extremely good reason to do so. If the new partner poses a risk to your children then this would be considered a justifiable reason. Contact arrangements can also be agreed upon in mediation, which can be a good platform to encourage parties to continue co-parenting. However, if this does not resolve issues then the Court application is the only other option.
Do we have to take the child to Court for the first appointment?
During children proceedings, there is no duty to take the child to the first appointment or any other hearings for that matter. The only stage where your children will become involved in the proceedings is if CAFCASS (Childrens and Family Court Advisory Support Service) have been ordered by the Court to make a report. If this is the case, a CAFCASS officer may speak to the child so long as they are of an appropriate age and understanding.
I got a letter from a solicitor about an ex partner wanting to see our child more. Should I ignore it?
It is never advisable to ignore a letter from a solicitor, as ignoring correspondence can result in unnecessary proceedings being issued. Solicitor’s letters are often geared towards reaching an agreement between the parties without the need for the Court to become involved. The reasons for the limited contact and the motivations for the increase are not known here, however I would advise that you seek independent legal advice before proceeding and preferably one specialising in family law. Even if Court proceedings are issued, parties are still able to reach an agreement between themselves and the Court process encourages parties to do so.
If a husband gets a non molestation order against a wife can he still see the children?
For the purpose of this scenario it will be assumed that the children are residing with the mother. Even when a Non-Molestation Order is made against a parent, it is not automatically assumed that they will be of any risk to the children. So long as no risk is presented, then the Non-Molestation Order will not affect the children’s right to see their parents. Indeed, it could be agreed that the contact is structured in a way that means there is no contact at all between you and your husband. It can be arranged that contact is supervised in a Contact Centre or that the exchange of the children be carried out by a mutual friend or relative.
If I’m requested to Court by my ex partner’s solicitor regarding children do I have to go?
The answer to this question will always be yes. If your attendance has been required at Court, and you do not attend, then without justification for your nonattendance, the Court possesses the power to make an Order that is appropriate in the circumstances, in your absence. Although you cannot be compelled to go to Court, it is always advisable to do so. Nonattendance can result in Orders being made without your case being represented. Furthermore, it is recommended that you seek to instruct a specialist family lawyer to represent you in the proceedings.
As I have a child under 16 do I have to be separated for 2 years before I can get a divorce?
There is only one ground for divorce, and which is that the marriage has irretrievably broken down. This ground must be supported by one of five facts. None of these facts are dependent upon the age of the parties’ children. The facts are as follows:
- Unreasonable behaviour.
- 2 years separation with consent of the other person.
- 5 years separation without the consent of the other person.
To confirm, each one of these facts may be relied upon by the person petitioning for the divorce regardless of the age of the children to the marriage.
If I get divorced will my children’s premium bonds be classed as assets?
Generally speaking, the answer to this question is no. Bonds usually have an insignificant value and are set up for the benefit of the child/children. However, where there are not enough assets to cover the needs of the parties, the Courts possess the power to be able to ‘dip in’ to the children’s bonds. If the bonds have been set up as a mechanism for the children’s saving and there is no alternate intention then it remains unlikely that this will be the case.
My ex refuses to pay child support & lives outside of the UK, what can I do?
To enable the CMS to both assess and collect maintenance, your estranged husband must be within the jurisdiction of the Courts of England and Wales. As this is not the case, he falls outside the jurisdiction. If you have a child maintenance order in force currently, in England, then there is a possibility that you could seek to enforce it in some countries. However, its more likely that there are no reciprocal enforcement agreements between the UK and the country where your ex is domiciled, therefore no way of enforcing the Order.
The easiest remedy in this scenario would be for you to arrange with your ex-husband directly for him to pay you child maintenance. If you are unable to do this, your only options are to make an application to the Courts of England & Wales for maintenance under Schedule 1 of the Children Act 1989 which has potential enforcement issues, or consider making an application to courts in the country where your ex is domiciled. However, if you chose to make an application in a country outside of the UK, you must first seek professional advice from a lawyer in that country.
What are statement of arrangements forms?
This is a standard form that provides the Court with information in order for it to consider the arrangements for children under s.41 Matrimonial Causes Act 1973. The form requires the Applicant to provide details about any children of the marriage, including but not limited to their accommodation, health scare, education, financial maintenance and the contact arrangements with the absent parent. The form had to be filled in if there were children of the family under the age of 16, or children between 16 and 18 years who were still in education.
It used to be a mandatory requirement for the Statement of Arrangements form to be lodged at the Court alongside the divorce petition. However, since the Children and Families Act 2014 came in to force in April this year, there is no longer such a requirement. That being said, the form is mistakenly referenced still in the Acknowledgement of Service the Respondent has to complete.
Will child maintenance payments stop if I remarry?
As its very name suggests, child maintenance is a payment made by an absent parent for their child. The payments are not made for the ex-partner and as such your relationship status has absolutely no bearing on the continuance of the payments. An absent parent has an ongoing legal obligation to maintain their child/children until they become 18.
Can my baby’s mother take my children back to her country.
There are various ways that you can prevent the removal of your children out of the country. If you suspect that there is a real risk that the children are going to be removed from the jurisdiction (England and Wales) and that the removal is going to occur in the near future, you can apply to the Court for a Prohibited Steps Order. Such an order, if granted, would prevent the other parent from leaving the country with them without your prior consent.
However, it should be noted that the the other parent could apply to the Court for a Specific Issue Order. This is an Order based upon a specific issue in dispute between parents. Here, the other parent would be seeking the Courts approval for her to remove the children from the jurisdiction. The way in which the outcome of both of these applications would be decided, is asking what is in the best interest of the child. This is determined by looking at the welfare checklist contained in section 2 of the Children Act 1989.
Aside from the legal options, there are also practical steps that you could take to prevent the children leaving the country. If you are already in possession of their passports ensure that this remains the case, and to avoid any new passports being applied for or replaced without your knowledge, you should speak to the Passport office to ensure you are notified if an application is made.
Are children separated when they are adopted?
Only in exceptional circumstances are children separated when they are adopted. However, sometimes the situation dictates that keeping the children together is not possible. The Courts are extremely reluctant to separate siblings, but in rare cases where this is the only option, the need for siblings to remain in contact must be considered.
Can my child claim a lump sum from an absent parent?
Schedule 1 of the Children Act 1989 confirms that this is possible. A parent can be ordered to pay both a lump sum and/or transfer property for the benefit of a child during their minority. In cases where the one paying the child maintenance has a substantial income, which exceeds the limits of the CMS’s jurisdiction, the legislation also allows for claims to be made for child maintenance. This maintenance payment is completely in addition to the parent’s obligation to maintain their child through CMS payments. In this way it acts as a mechanism for topping up payments already received.
Can the children be moved away by a mother with shared custody?
If there is a residence Order in force with respect to a child, no person can remove the child from the Courts jurisdiction (England and Wales) without the consent of every person with parental responsibility, or without leave of the Court. However, if there is a residence order in favour of one parent, this empowers them to remove the child/children from the country for no longer than a month, without the requirement to obtain consent. This enables parents to take their children on holiday.
The situation with shared residence is somewhat unclear, as the children live with both parents. The Children and Families Bill 2014 provides that a parent with whom the child lives, is able to take that child outside of the UK for up to one month.
In any event, if a one parent wished to relocate with the children, the other could apply to the Court for a Prohibited Steps Order to prevent this from happening, or a Specific Issue Order determining where the child should live. Both orders are made with regard to the welfare checklist listed in the Children Act 1989 and ultimately by deciding what is in the best interests of the child.
Can my ex-husband make me pay via the CMS if he won’t let me see my child?
Ultimately, the answer to this question is yes. The obligation that the law places upon absent parents to provide for their children is not dependent on whether they see them or not. The only bearing the amount of time spent with the child in question has upon the payment of child maintenance, is on the amount of maintenance paid. The CMS cannot absolve the responsibility you have to maintain your child/children just because your ex-husband is refusing you any contact.
You may find it useful to visit the CMS website www.childmaintenanceservices.direct.gov.uk which has a child maintenance calculator to work out how much you should be paying.
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