Families often find Christmas at home very comforting. But if you’ve gone through divorce or separation, you can often be looking for a bit of a change. It is helpful to see the festive season as a time to make new traditions for you and your family, whatever that looks like now. This might mean you have to compromise with your ex-partner on some things, particularly when it comes to the children.
Going abroad at Christmas is a popular way of spending the holidays. Many people choose to go on holiday as a way of relaxing, and often an attempt to avoid the stress and anxiety of Christmas at home.
Christmas holidays abroad – the legal reality
If you have gone through divorce or separation and are planning on going away over Christmas it’s really important you understand the potential legal implications, specifically where children are concerned. Taking your children on holiday is a wonderful thing to do and helps you stay connected and create new memories together. However, going abroad with your children after divorce does entail some unique challenges. These can be managed easily in the vast majority of cases.
If you have a child arrangements order that states that your child/children live with you, known as a ‘lives with’ order, you can freely take your family out of the country without the other parent’s express permission, for up to 28 days.
However, you should keep in mind that you still need to adhere to the remaining terms of that order. The right to take your child abroad for up to 28 days does not trump the terms of the order which govern what time your child should spend with each parent. If your order states that the other parent is to have the child on Boxing Day for example, you would need to return from your trip in time for that so that you do not breach the terms of the order.
If you don’t have this order, you will need to get permission from the other parent (or person with parental responsibility) that confirms they are happy with you taking the trip. It is sensible to get this in writing.
It’s always good to get permission anyway, even if you have the lives with order, as it helps to maintain trust between you and your child’s other parent. You can do this through discussing with the other parent directly or solicitors can do the negotiation for you.
What happens if the other parent doesn’t agree to the holiday?
Unfortunately, in some cases, the other parent can refuse to give permission and if you are not the parent with the ‘lives with’ order, this is within their rights as someone with parental responsibility. In this case, you can seek to use a method of non-court dispute resolution to come to an agreement about the holiday, such as mediation or collaborative family law in the first instance.
In cases where an agreement still cannot be reached, you will need to apply to court for a Specific Issue Order. The court will then need to decide on this specific issue and whether a holiday abroad is in the child’s best interests.
Often, the court will find that a holiday should be allowed and will grant you permission to go away, though it does depend upon the particular circumstances of the case. The court may ask you to provide certain safeguards as a condition of permission, such as proof of your return flight tickets or undertakings (legally enforceable promises to the court). This permission can be taken with you, so that in the event you’re stopped at border control, you have written evidence of permission by way of a court order.
Expert family lawyer, Martha Holland, who specialises in child matters after divorce or separation, explains more below.
Planning your holiday abroad at Christmas
As with everything Christmas-related, success is in the planning. The earlier the better! You should really talk to your ex as soon as you have the idea of the trip and get that all-important permission sought.
There are other documents you may need to prove your relationship to your children at borders (such as airports or ports), including:
- Proof of change of name if you have changed your surname since your divorce and it is different to your children’s
- Your divorce certificate
- Full contact details of the other parent or person with parental responsibility.
Learn more about travelling abroad with your children after divorce or separation.
Make sure your ex-partner has information about the trip, including how long you will be away, your flight details, and how to contact you and the children. You may need to set up a new structure of contact for younger children, for example regular video calls with the other parent whilst you’re away. This helps to continue a positive relationship and ensure that your children remain connected. This is particularly important over the Christmas period where family and friends are often a central part of our festive celebrations.
You can find out more about how to support children during the Christmas holidays in this article.
Useful Links
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Keeping children in the centre – not the middle – of divorce and separation
