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Changing a child’s surname: family law Q&A

Experienced family lawyer Graham Coy appeared on Radio Verulam this morning to answer a range of family law questions, including changing a child’s surname and DIY divorces.

One listener wanted some advice regarding the residency of her child who had been living with the father and who had now said he wished to keep the child on a permanent basis. Graham suggested that the listen could apply to the courts, who would take a number of things into consideration, but the focus would remain on the child’s best interests. If the child was old enough then their wishes would also be taken into consideration. However, Graham explained that court can be expensive and advised that mediation was a better option for resolving issues relating to children and that it can be much cheaper too.

Graham also answered questions about marriage counselling and getting divorced without having a bank account.

Transcript from Graham Coy on Radio Verulam:

PR:                         Phil Richards

GC:                        Graham Coy

PR:                         My son has been living with his dad for some time now as I have been in temporary accommodation. I am now in permanent accommodation and would like my son back although my ex-partner won’t agree. What can be done here from a legal point of view?

GC:                        The first thing to say is that the mother could apply to the court for an order that her son goes back and lives with her. The court would have to consider everything about the case including how long the mother and son have been living apart and why. Any decision about any child is always dependent upon the child’s best interests. If the child is old enough, then the child’s own wishes are taken into account. They are not the be all and end all, so it doesn’t mean that children get whatever they want. If the child is above the age of 11 or something like that, then whatever the little boy wanted to happen would be taken into account. The difficulty many, many people have these days is that there isn’t very much legal aid available at all now, so it is quite difficult to take things to court if you are not very well off. Certainly, your listener ought to get legal advice. Probably the best way to go about resolving something like this would be through mediation. Mediation is much better for resolving things around children. It is much quicker and very much cheaper. Either they can get details of a mediator from the solicitor or they can contact the family mediation council who will have a list of accredited mediators in their area. Research has shown that matters about children agreed through mediation are much more likely to stand the test of time.

PR:                         I divorced my husband last year and we have two children aged 9 and 10. I would like to change the surname of the children from my ex-husbands surname name to my maiden name. My children no longer like the father as he was aggressive to them before the divorce and are in agreement to the name change. Is this possible, and if so how do I go about it?

GC:                        This answer is, I’m afraid, quite simple, you can’t do it. Both parents, if they’ve been married have what is called parental responsibility for their children. That means any major decision in the child’s life, like health, religion, education has really to be taken jointly. That also includes changing a child’s surname. If they really think the best thing for the child is to change their surname, then they have to either get the father’s permission or they have to make an application to the court. They could do it without the father’s permission but then they stand the real risk of the father finding out and making an application to the court for the surname to be changed back again. Judges take quite a dim view on people taking things into their own hands. Also for the children having their names changed and then changed back again is pretty distressing and embarrassing for children of nine and ten. The best thing is to try and get the father’s permission; otherwise you have to make an application to the court. Parental responsibility only lasts until the children are 18 and when the children are 18 they are grown-ups and they can do whatever they want.

PR:                         Is it possible to do a ‘DIY’ divorce where I don’t have to use a divorce lawyer? They can be expensive and I don’t have much money. If I can do this, what pitfalls should I look out for?

GC:                        Divorce, is expensive these days whatever you do. You have to pay a court fee of £550 which is a lot of money. The government have recently increased the divorce fees, we as legal representation objected to that but all that happened the government delayed the increase. So there is £500 to pay out. What I would say is that a number of family lawyers offer a fixed fee for divorce which obviously includes the court fee. It is far better, if your listener can afford to go to a solicitor because they know what they’re doing. They are legally trained and getting a divorce is a legal step. There are people online who do divorces but you need to be very careful because they are not regulated, they are not insured and there are no complaints systems in place if anything goes wrong. By all means look at that for doing a divorce, but don’t do anything else, like finances or children without getting legal advice.

PR:                         My husband and I are going through a bad patch again. Do you know where we can obtain some form of guidance instead of divorce? Do divorce lawyers offer this?

GC:                        Solicitors don’t offer marriage guidance we are not trained to do that. There are a number of organisations out there who will offer help for people who are going through bad patches and many, many people do these days. Probably the best and certainly the most well-known is Relate. Equally there are many councillors out there who would be able to offer advice whether to one or both of the couple to get over their differences. Again, it is a matter of being careful if you want a councillor. Make sure you do some enquiries on the internet or with professional organisations because anyone can call themselves a councillor, but you need a councillor who is experienced with family breakdowns. The best way to start is Relate.

PR:                         I am in the process of obtaining a divorce. I cannot get a bank account anywhere which means I have nowhere to put a financial settlement when it comes through. Is there a safe place I can keep the money until I sort out my banking situation? Can it be paid to my lawyer to hold on my behalf?

GC:                        It does seem odd that these days someone doesn’t have a bank account because even if you receive state benefits you’ve got to have a bank account and not wanting to put it under the mattress. What you can you if you’ve got a lawyer who is helping you with your divorce and who can receive the money for you, they can keep it as long as you wish. But a lawyer cannot be a banker. You can’t go to a solicitor and say “I’ve done a deal with my husband” or “I’ve done a deal with my wife”, will you please receive the money. We as solicitors are not allowed to do that. If we have secured settlement agreement for our client we can retain the money. We retain it in a client account so it is secure. It does earn interest but not very much I’m afraid these days. Really most people can get banks accounts if they’ve got ID; passport, driving licence, normally most people can get a bank account. You’re in control and you can take the money wherever you want. Also, of course, you will probably get more interest on it if you are not using it for a while.

To listen to the interview, click here.

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