It’s a question that’s always been asked, but perhaps it takes on more importance in the light of the current pandemic: do you have to go to court to get divorced?
One of the things that scares many people about getting divorced is the prospect of going to court. For many, a court is a strange, intimidating, place that they want to avoid if at all possible. This is entirely understandable – it can sometimes be intimidating even for seasoned lawyers!
The simple answer is that you don’t have to go to court to get divorced. If the divorce isn’t contested, and you and your spouse are able to agree all matters relating to arrangements for children and finances, then it is normally possible to avoid having to go to court.
But unfortunately things aren’t always simple. For a fuller answer we need to look more closely, dividing the process into the divorce itself, children arrangements, and finances.
Going to court for the divorce
This really should be avoidable.
Generally speaking, the only time when a divorce requires a court hearing is when it is defended. But if the party who issued the divorce really wants it then ultimately defending a divorce will not save the marriage, so anyone considering defending a divorce should think very carefully, and take legal advice, before doing so. Defended divorces are extremely rare.
It is also a good idea for anyone who fears that their spouse may try to defend to take legal advice before issuing the divorce, as it may be possible to avoid defended divorce proceedings.
Of course, defended divorces are likely soon to be a thing of the past, as the government intends to bring in a new system of no-fault divorce, under which there will be no right to defend the divorce.
Going to court to sort out children arrangements
As indicated, it should not be necessary to go to court if you can agree children arrangements with your spouse. In fact, if there is an agreement, then normally no court order will even be needed.
But if you cannot agree arrangements then you will need to go to court, and get an order. The proceedings are likely to involve several hearings, at which you will be required to attend.
Going to court to sort out finances
Subject to what we say below, it should not be necessary to go to court if you agree financial arrangements with your spouse.
However, if you do not agree arrangements then you will need to go to court to sort things out, and probably several times.
Even if you do agree, you will still need a court order, setting out the terms of the agreement. Normally, it is possible to get an order without having to attend court. However, the court will only make the order if it is satisfied that the agreement is reasonable. If it is not satisfied, then the judge may require the parties to attend court.
Mediation instead of court
If you are unable to agree arrangements for children or finances direct with your spouse or through lawyers then you can always try to avoid court by going through mediation. If the mediation results in an agreement then it should be possible to sort things out without a court hearing.
For more information regarding family mediation, see here.
Covid-19 and remote hearings
As we mentioned at the start of this article we are, of course, in the middle of the Covid-19 pandemic. With the need for social distancing, the pandemic is one more reason to want to avoid having to go to a court
As we reported here previously, the Family Court is now conducting many hearings remotely, because of the Covid-19 pandemic. The hearings are taking place via telephone or video conferencing, rather than in a courtroom. Some or all of those involved, which could include the judge, the lawyers and the parties, is at a separate, remote, location – in many cases, their home.
But just how well are these remote hearings working?
Well, we now have a first indication, and it is quite instructive, especially for anyone facing the prospect of a remote hearing.
In view of the importance of the issue of remote hearings, last month the President of the Family Division Sir Andrew MacFarlane asked the Nuffield Family Justice Observatory, an independent organisation committed to improving life for children and families by putting data and evidence at the heart of the family justice system, to carry out a rapid consultation on the use of remote hearings in the Family Court.
The consultation ran for two weeks, and well over 1,000 people responded, including judges, lawyers, Cafcass, parents, and other interested groups.
The Observatory has now published a report providing an overview of the consultation responses. We will summarise here some of the points raised by the responses, that we believe will be of most interest to any litigant who faces the prospect of a remote hearing.
What type of hearings are conducted remotely?
Obviously, not all Family Court hearings will be suitable for remote hearing, as we explained here just recently.
The respondents to the consultation reported that they had experienced various types of hearings being conducted remotely, including ‘directions’, or case management, hearings (where the court directs what needs to happen before a final hearing takes place), interim hearings (where ‘temporary’ orders are made, pending a final hearing), and final hearings.
Clearly, directions hearings and, to a lesser extent, interim hearings are more likely to be suitable to be conducted remotely, as no final orders are made at those hearings. More care will surely have to be taken as to the suitability of conducting a final hearing remotely.
Fairness and justice
This is perhaps the most important issue: is it possible to conduct the remote hearing fairly?
Respondents to the consultation raised various concerns, including difficulties arising out of the lack of face-to-face contact (remote hearings are impersonal), and difficulties for the passing of instructions from clients to lawyers.
Some respondents also expressed concerns about parents, and sometimes legal representatives, not receiving adequate information in advance about how the hearing was going to be conducted, and how they could take part.
Another big concern was about the confidentiality of proceedings when conducted remotely, for example where other people are in the same room as someone who is involved in a remote hearing. Clearly, anyone who is not a party, including any children, should not be present.
Obviously, remote hearings rely upon technology. All parties must have reliable access to the appropriate technology, and must be confident in using it. That is not the case with everyone.
And it may transpire that certain types of technology may be more suitable than others.
The judge conducting the hearing will also need to make it clear at the outset how he/she expects the parties to use the technology, for example muting microphones when not speaking.
And then there is of course the issue of telephone or internet connections dropping, which can lead to delays, or even to hearings having to be abandoned.
A positive or negative experience?
Overall, then, did respondents find remote hearings to be a positive or a negative experience?
Well, it seems that the jury is still out. Most respondents said that there were both negatives and positives, and those respondents who expressed a definite view one way or the other were pretty well evenly divided.
Whatever, it seems that remote hearings will be with us for some time to come, and may well remain a part of the family law landscape even after we are finally rid of this awful pandemic.
There is much more in the report, including suggestions for how remote hearings might be undertaken in future. If you want to read the full report, you can find it here.
The best solution to resolving a divorce or family dispute is of course by agreeing matters with the other party, whether those matters relate to arrangements for any dependent children, finances, or property.
And one of the best ways to sort out matters by agreement is through mediation, whereby a trained family mediator will help the parties come to an agreement, which is both workable and fair to all.
But, despite the fact that mediation has been used to resolve family disputes for more than twenty years, many people going through family breakdown still have reservations about it, doubting that it will be suitable for them, or that it will work.
In fact, family mediation is appropriate for the vast majority of cases. As any experienced family lawyer will attest, many cases settle by agreement despite it appearing at the outset that that would be unlikely to ever happen. Similarly, with the help of an expert mediator, mediation can be successful in the most unlikely cases.
However, despite our enthusiasm for mediation as a method of resolving family disputes, we do acknowledge that sometimes it is not appropriate, and sometimes, despite best efforts, it is not successful.
When mediation is not appropriate
There are a number of situations in which family mediation is not appropriate. Here are some of the most common:
Coercion/other party unwilling to mediate – Mediation is purely voluntary. If one party does not wish to enter mediation, then they cannot be forced to do so.Mediation will not usually be appropriate where one party feels that they have been coerced to attend.
Domestic abuse – Mediation will not normally be appropriate if there have been any incidents of domestic abuse, or if there are any outstanding allegations of abuse.
Urgent cases – If the case is urgent for any reason then it will usually be more appropriate to take the matter straight to court, rather than go to mediation.
Bankruptcy – If the dispute is about money and you or the other party is bankrupt then mediation will not be appropriate.
Involvement of social services – Mediation in relation to arrangements for children will not usually be appropriate if you are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.
Acrimony – To be successful, mediation obviously requires a measure of cooperation between the parties. If this is simply not possible because of high levels of animosity between the parties then mediation is unlikely to be appropriate, unless the mediator is able to address the issue.
Power imbalance – In some cases there is a ‘power imbalance’ between the parties, with one party, for whatever reasons, being the ‘dominant’ one, and the other the ‘subservient’ one. Again, the mediator will try to address this issue, but if they are not successful then mediation may not be appropriate in such cases.
Previous (recent) mediation unsuccessful – Lastly, mediation may not be appropriate in cases where it has been attempted in the recent past, but has not been successful.
When mediation fails
Sometimes, despite the best efforts of an expert mediator, mediation is not successful. The mediator cannot force the parties, or one of them, to agree a settlement, no matter how appropriate the mediator may consider that settlement to be.
The mediation may come to an end because one or both of the parties withdraws. It may also come to an end if the mediator does not consider that there is any reasonable likelihood of the parties reaching an agreement, for example because the parties are too far apart, or because one of them is failing to negotiate.
In such a situation then the case will have to be sorted out by the court. It should be noted, however, that mediation can be ‘partly successful’, i.e. some issues are agreed between the parties, reducing the matters that the court has to adjudicate upon.
It should also be noted that, unless agreed otherwise by both parties, everything discussed in mediation is confidential. The court will not be aware of anything that was said or took place during the mediation.
If you would like more information about family mediation and how it works, see here.
We have already written here about how the Covid-19 pandemic and the resulting lockdown is affecting family law – see here for information as to where you can find information on a range of family problems, and here for guidance for separated parents during lockdown.
Obviously, this is a rapidly-developing subject, and we thought it would be useful to update readers with some of the latest developments.
Taking a child to a ‘safer’ country
The UK has recently suffered particularly badly with the Covid-19 virus. Some other countries have fared better. We all want to keep our children safe, and in these circumstances taking a child to a ‘safer’ country may be a tempting option for a parent. OK, with many borders closed and few flights available, it may not be an option currently, but international movement is likely to return before this pandemic is over.
However, a recent case has given an indication as to how the courts are likely to view the actions of a parent who takes their child to a ‘safer’ country, without the agreement of the other parent.
In the case the parents were both Greek, but the father came to London in 2017 and in January 2018 the mother and their eleven year old child followed. The child’s residence was therefore established in London.
On the 20th of March last, three days before the national lockdown, the mother unilaterally removed the child to her mother’s home on the island of Paros, in the belief that she and the child would be much safer from the virus there.
The father took court proceedings, seeking an order that the mother return the child to this country.
Considering the father’s application, Mr Justice Mostyn said that whilst the mother’s view may have been valid, it being common knowledge that Greece has a much lower rate of infection and mortality than this country, that did not justify, in the slightest, what was a wrongful removal of the child from the place of his habitual residence and, more importantly, from his father.
It is clear from this that the English courts are likely to take a dim view of a parent removing a child to another country without the agreement of the other parent, even if it is true that the child may be safer from the virus in the other country.
Remote hearings not always appropriate
As we reported here back in March, many family court cases are now being heard remotely, due to the Covid-19 lockdown. However, the President of the Family Division Sir Andrew McFarlane has said that remote hearings will not be appropriate in all cases.
Sir Andrew made his comments in a care proceedings case which concerned a seven year old girl, and in which the main issue is a series of allegations made by the local authority, all aimed at establishing that the girl has been caused significant harm by her mother, as a result of fabricated or induced illness.
Sir Andrew said that a 15-day remote final hearing of the case, which had been due to start on the 20th of April, could not “properly or fairly be conducted” without the mother’s physical presence before a judge in a courtroom.
He went on: “Given the wealth of factual detail that is to be placed before the court in relation to this mother’s actions over the last three or four years, for her to have a full real-time ability to instruct her legal team throughout the hearing, not just by a phone call at the end of each witness’s evidence, seems to me to be a prerequisite for her to be able to take an effective part in a fair process at the trial of issues such as this.”
Sir Andrew therefore ordered that the hearing should be re-listed, once the current restrictions have been lifted. Obviously, this could entail a considerable delay, which is of course something that the court will usually attempt to avoid in children cases.
Domestic abuse developments
Increased incidence of domestic abuse during the lockdown, and the difficulty of victims escaping the abuse, remains a major concern.
To help this situation, Boots pharmacies are now offering ‘safe space’ for domestic abuse victims.Those needing help can ask staff at the counter to use the consultation room, where they will be able to contact services for help and advice.
In another development Communities Secretary Robert Jenrick has announced £76 million extra funding to support survivors ofdomestic abuse, (amongst others) during the pandemic. Mr Jenrick said: ”It is essential that the most vulnerable people in our communities continue to get the vital support they need during this pandemic.This multi-million-poundpackage is a boost for charities working on front line to provide often lifesaving support or services at this unprecedented time.This includes essential support for domestic abuse victims, living in fear in the place where they should feel most safe – their home.”
A change to the rules will also mean that those fleeing domestic abuse and facing homelessness as a result will be automatically considered as priority by their council for housing, thereby ensuring that more survivors of domestic abuse have access to a safe home.
What is parental alienation, and what can I do about it?
Last Saturday, the 25th of April, was Parental Alienation Awareness Day. You may well not have noticed. But if you are a ‘victim’ of parental alienation then if you had noticed then it would certainly have resonated with you.
What is ‘parental alienation’?
The Children and Family Court Advisory and Support Service (‘Cafcass’), the organisation that looks after the interests of children involved in family proceedings, tell us that (their emphasis):
“While there is no single definition, we recognise parental alienation as when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”
They go on to explain that both mothers and fathers can demonstrate alienating behaviours, and that whilst alienation can be demonstrated solely by one parent, it is often a combination of child and adult behaviours and attitudes, with both parents playing a role, that lead to the child rejecting or resisting spending time with one parent.
What kind of behaviour are we talking about?
Well, there is no definitive list, and some types of behaviour will not necessarily lead to alienation, but behaviours and indicators can include: a parent constantly badmouthing or belittling the other in front of the child; a parent limiting the child’s contact with the other parent; a parent forbidding discussion about the other parent; and a parent creating the impression that the other parent dislikes or does not love the child.
Cafcass also explain that alienating behaviours can in addition include spurning, terrorising, isolating, corrupting or exploiting, and denying emotional responsiveness. They say that these tactics can foster a false belief that the alienated parent is dangerous or unworthy, and that children may adapt their own behaviours and feelings to the alienating parent to ensure that their attachment needs are met.
In some cases the actions of the alienating parent may be obvious. In other cases, however, the other, ‘alienated’, parent may know little about what the alienating parent has done. They may see their child demonstrate strong antipathy towards them, and may even suspect that this has been caused by the actions of the other parent, but will be unable to prove this. Parental alienation can be obvious, but it can also be insidious.
What can you do if you are an ‘alienated parent’?
Perhaps the most important thing to understand is that if a child demonstrates a clear antipathy towards one of their parents, then the court will want to know why. It will therefore conduct a thorough investigation, including by Cafcass officers trained in dealing with parental alienation and, if necessary, other experts, such as child psychologists.
If at all possible, the court will want to repair and restore the relationship between the child and the alienated parent.
If you believe that the other parent has alienated your child against you, you should therefore make an application to the court for a child arrangements order.
If, after investigating the matter, the court finds that the other parent has alienated your child against you, then the court will try to restore your relationship with your child, and it could even, in extreme cases, decide that the actions of the other parent are so damaging to your child that the child would be better off living with you.
You should, however, be aware that these can be very difficult cases for the court to deal with. They may take a long time for the court to deal with. You should therefore be prepared for the long haul.
Obviously, there can never be a guarantee that the court will be able to restore your relationship with your child, but if you instruct an expert family lawyer to deal with your case, and if you follow their advice, then your chances of success will be much greater.
Parental alienation is a complex and highly emotive subject. The above just sets out some basic advice. If you believe that you are a victim of parental alienation then you really should consult an expert family lawyer. We have that expertise – to contact us, please complete the form here.
We also offer lots of free information on a range of family matters, which you can find here.
Welcome to Lauren Preedy: Senior Associate Solicitor / Head of our Divorce Team.
We are very pleased to welcome Lauren Preedy to our team.
The new Head of our Divorce Team
Lauren joined us on Monday, 20 April 2020 as a Senior Associate Solicitor and head of our Divorce Team.
Lauren is the current Chair of the Somerset Region of Resolution. We are therefore in the unique position of having within our team the Chairs of both Devon and Somerset regions of Resolution (our founder Ian Walker being the long-standing Chair of Devon Region).
Lauren is a highly experienced Divorce Solicitor and her Specialist areas of work are: divorce, separation and resolving financial matters following relationship breakdown (for married and unmarried people).
Lauren has specific expertise in dealing with complex and/or high net worth financial matters, many with a business or pension element.
An additional Collaborative Family Lawyer in our team
Lauren is also a Collaborative Family Lawyer and is the Chair of the Somerset Collaborative POD Committee.
Together with Fiona Griffin and Ian Walker, this means that we now have three collaborative family lawyers within our team.
Our divorce team now consists of divorce specialists; Lauren Preedy, Fiona Griffin, Karen Elliott, David Howell Richardson and Nicole Phare supported by our team members who also undertake divorce work but who have a slightly broader practice, namely: Ian Walker and Sandy Powell. Altogether this is a very experienced team.
Our practice has now been in business for nearly 7 ½ years. In this time we have grown from the practice being just me and a computer, to becoming one of the most significant specialist family law teams in the South-West.
It now seems an age away, but in February 2020 we were recognised in the Modern Law Awards as Boutique Law Firm of the Year (11+ employees) 2020. (A boutique law firm means any law firm that specialises in one area of law – for us, family law).
This was a prestigious national award – and the Modern Law Awards are particularly focused upon progressive practice and innovation. To have won this award was a massive recognition of what we are trying to do.
Lauren Preedy is a highly respected Divorce Specialist Solicitor in the South-West and it is a mark of how far we have come as a practice within the last 7 ½ years that we continue to be able to recruit very high quality lawyers to our team.
I have known Lauren in a professional capacity for several years and was absolutely delighted when she agreed to join us. Lauren is an outstanding lawyer. Lauren is also very personable and committed to the principles and best practice promoted by Resolution.
We are very much looking forward to working with her.
Big plans for 2020
Lauren’s Recruitment will be the first of several new team members who will be joining us in 2020.
Over the next few months, we will be expanding our team and reorganising internally to enable us to meet the needs of our clients even better. As a first step in this reorganisation Lauren joins as the head of Our Divorce Team.
By the time we get to the autumn we will have significantly added to the strength and depth of our team and will have made what was already a strong team – even stronger.
Watch this space…
We will also be taking other steps which will improve our client service and overall client experience…. More to follow….
We are open for business notwithstanding Covid-19
In the meantime, the justice system remains open and as part of the justice system, we are an essential service and remains open for business. We are continuing to see new clients and are currently offering initial meetings through videoconferencing.
Family life is under particular stress at the moment. If it is difficult for adults it will be even more difficult for children. We urge everyone to be patient and understanding and generous.
But, if you need our assistance, then please do get in touch.
These are very difficult times and we are conscious that they have touched millions in very different ways. We particularly applaud all those on the frontline. We hope that life will return to something near to normality as soon as possible. In the meantime we hope that everyone stays safe.
It’s a simple question, but one that doesn’t always have a simple answer. We’ll start with the basics.
All of the circumstances of the case will be taken into account when deciding how property is divided on divorce. However, the law lists a number of factors to which particular regard must be given.
The first and most important factor is the welfare of any minor of any child of the family who has not attained the age of eighteen. This means, for example, that suitable housing will have to be provided for any such child, and their basic needs (food, clothing, etc.) will also have to be provided for.
The other factors include the following:
1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. Accordingly, for example, if one party has substantially more income than the other then it may be appropriate for the other party to receive a greater share of the capital assets.
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future. This will very often be the most important factor in deciding how property is divided on divorce, unless the family is particularly wealthy. Each party will have financial needs, in particular for housing and income, and it may be that how those needs are met will be the decisive factor.
3. The standard of living enjoyed by the family before the breakdown of the marriage. This essentially means that the division of property should try to ensure that the parties continue to enjoy the same standard of living after the divorce, if possible.
4. The age of each party to the marriage and the duration of the marriage. For example, age could be relevant to needs, and after a very short marriage it may be appropriate to simply return the parties to the position they were in before the marriage.
5. Any physical or mental disability of either of the parties to the marriage. Obviously, this may affect their needs.
6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family. Thus, for example, a wife’s contribution towards bringing up the family may be considered to be equivalent to the husband’s financial contribution towards the marriage.
7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it. Note that the conduct has to be quite serious – it is very rare that conduct makes a difference to a financial settlement.
8. The value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. The main such benefit is under the other spouse’s pension.
Fairness and the sharing principle
As the reader may have noted, none of the above states what should be the aim of the law when deciding how property should be divided on divorce. However, the courts have made it quite clear that, implicitly, the objective is to achieve a fair outcome.
The question, then, is: what is a fair outcome? Well, of course it will vary from one case to the next, but there are certain other principles that should be borne in mind.
We will not go into all of those principles here, but the most important is what is known as the ‘sharing principle’. This essentially states that, whilst there is no presumption that property should be divided equally between the parties, a departure from equal division should only be made if there is a good reason for doing so.
Accordingly, in a case where the circumstances of the spouses are similar then it is likely that there should be a simple equal division of the matrimonial assets (i.e. the assets that have accrued during the marriage).
On the other hand, as indicated above, if (for example) one party has significantly less income than the other, or greater needs than the other, then it may be appropriate for them to receive more than half of the matrimonial assets.
We hope that the above is useful, but it just sets out the basic principles, in a simplified form. If you would like more detailed advice, including how these principles may apply to your particular situation, we can help. We also have a free online system providing information on a range of family matters, which you can find here.
These days all good family lawyers will encourage their clients to resolve their divorces, including arrangements over children and finances, in a non-confrontational way. Such an approach has the best chance of sorting matters out by agreement, thereby saving money, time, and stress for all concerned, including any children.
But sometimes, even with the best will in the world, it is simply not possible to resolve matters amicably. Sometimes the other party is just not prepared to be amicable. Sometimes old differences return to the surface, and negotiations that had been friendly turn ‘nasty’.
What can you do if this happens to you?
Most divorces comprise three elements: the divorce itself, arrangements regarding any dependent children, and sorting out finances. We will deal with each in turn.
The divorce itself
Exactly what you can do here depends upon whether the divorce has been issued, and if so, who issued it, and what stage it has reached.
Issuing divorce proceedings can often seem like an ‘aggressive’ step to the other party, especially if it involves alleging that they are to blame for the breakdown of the marriage (thankfully, this should soon no longer be necessary, when we have system of no-fault divorce). And it can be even worse if the divorce has already turned nasty.
The last thing you or your spouse need is the expense of a contested divorce. So what can you do if you want to issue divorce proceedings?
Hopefully, your spouse will have instructed a lawyer, who will explain to them that attributing blame is just a requirement of the law in order to get a divorce where the parties have not yet been separated for two years. And it does not affect anything else, such as arrangements for children and finances.
If they do not have a lawyer, then your lawyer can try explaining this to them, and that you will do all you can to make it less ‘painful’, for example not naming any other party, and keeping behaviour allegations to a ‘minimum’.
If you have issued the divorce and your spouse is refusing to acknowledge receipt of the divorce papers, then you can take steps to prove that they have received them, and then proceed with the divorce.
If your spouse has issued the divorce but then indicated that they do not intend to proceed, then what you can do depends upon whether the decree nisi has been pronounced. If it has not, then you may need to cross-petition yourself. If it has, then you can yourself apply for the decree absolute, finalising the divorce, once six weeks plus three months have elapsed since the decree nisi.
Obviously, if the divorce has turned nasty then you will have to ask the court to sort out arrangements for any dependent children, including how much time they should spend with each parent. The court will decide what the arrangements will be, and will set them out in a court order.
But what if the other party fails to adhere to the terms of the order?
Well, there are various steps that can be taken to enforce child arrangements orders. We could not set them out in full here, but they include imposing an ‘unpaid work requirement’ on the person in breach of the order, fining that person and, in extreme cases, committing them to prison for contempt of court.
Sorting out finances
Again, if the divorce has turned nasty then you will have to apply to the court, this time for a financial remedies order. Each party will disclose details of their assets to the court, and having regard to those assets, and any other relevant circumstances, the court will decide upon a reasonable settlement.
But what if the other party fails to disclose their assets? Well, the court has power to require full disclosure, and can even make assumptions about assets if disclosure is not made.
And what if the other party tries to get rid of assets, to defeat your claim? In such a case you can ask the court to make an injunction to stop them from disposing of assets, and the court can even order that any assets they have disposed of be returned to them.
And what if the other party does not comply with the financial remedies order? Well, again, there are various methods of enforcing these orders, depending upon exactly what the order states.
As usual, the above just sets out some basic information. If you would like more detailed advice in relation to your particular situation, we can help. We have a free online system providing information on a range of family matters, which you can find here.
What can you do if your marriage has broken down, but divorce is not an option? There are a number of reasons why it may not be an option: you have not been married for one year (divorce is not allowed before that), you may not have grounds for a divorce (although under our present law this is unlikely), or you may simply have a religious objection to divorce.
Well, if you need to get a court to sort things out, then there are several other options still available.
The first option to discuss is judicial separation. Judicial separation is a procedure similar to divorce, save that it does not dissolve the marriage. Instead, the court grants a decree of judicial separation, with the effect that “it shall no longer be obligatory for the petitioner to cohabit with the respondent.”
Of course, this has no practical meaning in modern society, so why apply for a judicial separation?
Well, the primary purpose of obtaining a decree of judicial separation is to utilise the court’s powers to grant financial remedies, in a similar way to divorce proceedings (as we will see below, the court’s powers to grant financial relief outside of divorce or judicial separation are somewhat limited). Accordingly, it is possible, for example, to ask the court to adjust the ownership of matrimonial property (i.e. transferring property, or a share of it, from one party to the other), following the judicial separation decree.
There is, however, one important limitation on the court’s financial powers following a decree of judicial separation. It cannot make pension sharing orders, sharing one party’s pension rights with the other party. Pension sharing orders can only be made when the marriage ends.
As stated, judicial separation procedure is similar to divorce. This means that you will still need to prove that the other party has committed adultery, that they have behaved unreasonable, two years desertion, two years separation with their consent, or five years separation. Thus, judicial separation is not available to anyone who does not have grounds for a divorce.
If you and your spouse are separating then you will need to sort out arrangements for any dependent children, i.e. how much time they should spend with each parent.
You should try to sort out these arrangements by agreement with the other parent. However, if you are unable to do so then it is perfectly possible to apply to the family court for a child arrangements order, without there being any divorce proceedings.
Similarly, you should try to sort out child maintenance arrangements by agreement with the other parent.
If you are unable to do so, or if the other parent does not pay, then you can apply to the Child Maintenance Service for a child maintenance assessment. Again, this can be done without any divorce proceedings taking place.
Other financial arrangements
This is where things can get a little tricky (if you do not apply for a judicial separation), because, as we mentioned above, the powers of the court to make financial orders where there is no divorce or judicial separation are much more limited.
It is possible, although quite rare, for the court to order one spouse to pay maintenance or a lump sum to the other, even if there are no divorce or judicial separation proceedings. However, the court cannot adjust ownership of property, or make pension sharing orders.
Where there is a dependent child, the court can make certain financial provision orders for the benefit of the child, and there are also some other limited ways that the court can deal with property outside of divorce or judicial separation. However, these are quite complex areas of law, and are beyond the scope of this article.
The above of course is just a basic outline of the law. If you would like more detailed advice in relation to your particular situation, we can help. We have a free online system providing information on a range of family matters, which you can find here.
Last week the Department for Work and Pensions published the latest release of annual statistics on separated families in Great Britain. The statistics indicated that in 2017/18, the latest year for which figures are available, there were approximately 2.4 million separated families in Great Britain, including 3.5 million dependent children.
That is a lot of families, and a lot of children. Now, obviously, for most of those children arrangements are in place for them to live with, or have contact with, both of their parents. The arrangements may be agreed between the parents, or they may be contained in a child arrangements court order.
Of course, none of those arrangements will have envisaged the present situation, where we are in ‘lockdown’, restricted to our own homes, unable to leave save for essential shopping, daily exercise, medical need or attending essential work.
So how will child arrangements work now?
The first thing to say is that the Government has specifically made clear that the lockdown does not apply to the movement of children under 18 between their parents’ homes. Moving a child from one parent to another in accordance with child arrangements (whether agreed or in a court order) does not breach the lockdown.
But of course it is not necessarily as simple as that. We all have to take into account considerations relating not just to the health and welfare of our own families, but in relation to public health generally. Maybe the arrangements that were made before the Coronavirus crisis are not currently appropriate –what happens then?
Guidance from the President
Well, the President of the Family Division Sir Andrew McFarlane has issued guidance for parents during the crisis. The guidance specifically relates to compliance with Family Court child arrangements orders, but most of it applies equally well to those parents who have agreed arrangements for their children.
The guidance beings by saying that parental responsibility, i.e. the responsibility to make decisions relating to a child, rests with the child’s parents and not with the court. This is important: parents do not need to go to the court every time a decision needs to be made regarding their child, even where a child arrangements order is in force.
The guidance goes on to say that the decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other. In other words, if you are concerned, the first thing you should do is try to discuss the matter with the other parent. If the parents can agree matters, then each parent should record the agreement in a note, email or text message sent to the other parent.
But sometimes of course parents can’t agree. Obviously, no parent is going to want to stop seeing their child, or have their contact with their child restricted. The guidance make clear that where parents do not agree to vary the arrangements set out in a child arrangements order, but one parent is sufficiently concerned that complying with the arrangements would be against current public health advice, then that parent may vary the arrangement to one that they consider to be safe. However, it should be borne in mind that if the matter later goes back before the Family Court then the court will consider whether that parent acted reasonably.
And where Coronavirus restrictions cause the letter of a court order to be varied, the guidance says that the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Government’s lockdown rules, for example remotely – by FaceTime, WhatsApp FaceTime, Skype, Zoom or other video connection or, if that is not possible, by telephone.
The guidance concludes with this:
“The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.”
Of course, the above just sets out some basic general principles. If you would like more detailed advice in relation to your particular situation, we can help. We have a free online system providing information on a range of family matters, which you can find here.