UPDATE: Back to school – or not?

back to school or not UPDATE

Back to school - or not?

Recently we blogged about Laurence Fox and his claim that he would take his sons out of school should vaccines be rolled out for 12-year-olds on the basis that he feared they would have the Covid jab without his permission.

Now there has been a case in America where a father in New York has been banned, by a family court judge, from seeing his daughter unless he gets the Covid vaccination.

Family Law Associate Melissa Jones looks at the issues.

This is an interesting scenario. In this particular case, contact was not deemed to be in the best interest of the child on the basis that  the father was opposed to the Covid vaccination. The judge was quite strict in his ruling, notably amid a worrying time in the middle of a global pandemic, and made the following comments:

“The dangers of voluntarily remaining unvaccinated during access with a child while the Covid-19 virus remains a threat to children’s health and safety cannot be understated.

“Unfortunately, and to my mind, incomprehensibly, a sizable minority, seizing upon misinformation, conspiracy theories, and muddled notions of ‘individual liberty’, have refused all entreaties to be vaccinated.”

What happens with contact in the UK if a parent refuses the vaccine?

It’s a possible worry for a lot of parents, but not one that has seemingly featured in the family courts in England and Wales. If this was a matter raised by a parent, within the English Courts, those Courts are likely to be guided by Cafcass, the advisory service to the Courts, to prepare an assessment to consider the risk factors and to decide whether contact is actually in a child’s best interest.

Extreme circumstances

In extreme circumstances, particularly if a child is medically vulnerable, Cafcass and the court may exercise caution: but it would be a rarity.  No doubt the Court would also consider NHS guidance and other expert evidence they consider necessary.  Plus, there are now many modern alternatives to face-to-face contact, such as video contact and voice notes, that could mean the parent and child relationship could be maintained.  It is a child’s right to have a relationship with both parents and the Court will want to maintain that relationship wherever possible.

The court application

If the other parent is strongly opposed to their child being vaccinated (not just the Covid vaccine) and they cannot agree on this, then they could apply to the court for a Prohibited Steps Order and/or Specific Issue Order, which are orders that can prevent certain actions being taken by a parent, and/or making decisions on matters that parents cannot agree upon in the exercising of their rights and duties relating to parental responsibility.  Medical issues fall into these categories.

The court will consider the parents’ opinions and the best interests of the children.

Before making an application to the court, it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to agree to vaccinate your child, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move.

With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

When Adam met the judge

when adam met the judge

When Adam met the Judge

Adam: “Hi Judge. If you send me and my brothers home, will you give us a bodyguard?”

Judge: “Adam, if I thought you needed a bodyguard, I wouldn’t send you home.”

Partner Nick Hodson has specialised in the law relating to children for more than 20 years. Since 2001 he has been a member of the Law Society Children’s Panel, allowing him to represent children in both public and private law Children Act proceedings.

Here, he relates his experience of being the solicitor for Adam* and his brothers who wanted to meet the Judge who was going to hear their case.

Please be aware that reading some of the details in this story may be distressing.

 

*His name has been changed to protect his identity

This exchange was at a meeting at the Family Court when I took 11-year-old Adam and his brothers to meet the Judge who was going to hear their case.

I was the solicitor for the children. They had been removed from their parents care after the older children had made allegations that they had been physically abused by their parents. The children had said that they had been whipped with computer wires.

The child’s wishes and feelings

In making any decision about a child’s future, their wishes and feelings are a major consideration for the court. They are part of the welfare checklist that the court will review before concluding the case.

How are the children’s views relayed to the court?

Usually, the social worker and the CAFCASS officer will set out the children’s wishes and feelings in their reports. Sometimes, the children will write a letter to the Judge.

It has become increasingly common for older children to ask to meet the Judge. Over the past 18 months, such meetings have had to take place remotely. The Family Justice Council has produced guidance for judges who meet children during family proceedings. The guidelines are designed to encourage judges to enable children to feel more involved and connected to proceedings.

Key points from the guidance

* Such a meeting must be well planned and that everyone has to have a clear understanding of the purpose of the meeting.

* If a Judge decides to meet a child, it is a matter for the discretion of the Judge, having considered representations from the parties – (i) the purpose and proposed content of the meeting; (ii) at what stage during the proceedings, or after they have concluded, the meeting should take place; (iii) where the meeting will take place; (iv) who will bring the child to the meeting; (v) who will prepare the child for the meeting (this should usually be the Cafcass officer); (vi) who shall attend during the meeting – although a Judge should never see a child alone; (vii) by whom a minute of the meeting shall be taken, how that minute is to be approved by the Judge, and how it is to be communicated to the other parties.

* It cannot be stressed too often that the child’s meeting with the Judge is not for the purpose of gathering evidence.

* The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the Judge has understood him/her.

In the case of Adam and his brothers, at the final hearing the court decided that the parents had been responsible for the physical abuse on all their children.  The children remained in foster care.

The children’s voices had been heard loud and clear.

If you are affected by any of the issues raised here, please do get in touch. We’re here to help you.

Do grandparents have legal rights?

grandparents rights

Do grandparents have legal rights?

When parents separate, disputes in relation to children of the family can not only include estrangement from a parent but extend to wider family members, particularly grandparents who can often be stuck in between parent’s arguments.

What can those grandparents do in such a challenging situation?  Partner Caroline Bilous explains.

Legally speaking, there are no grandparents’ rights, as usually grandparents do not have Parental Responsibility (all mothers and most fathers have Parental Responsibility, which refers to the legal rights and responsibilities a parent in respect of a child, the most important of which are to provide a home and protect and look after a child) in the same way as a parent might have, although they might acquire it if a parent is unable to care.

However, the Family Court recognises that it is in a child’s best interests to maintain good relationships with close family members, particularly grandparents, even if the parent of the child cannot, and as such, a court order called a Child Arrangements Order may be obtained to protect such relationships.

Do grandparents’ rights include the right to see a grandchild?

Grandparents do not have an automatic right to see a grandchild and above all, whatever the relationship between estranged parents, it is important to step back and try to avoid becoming involved in any disagreement, which is hard to do when it is your own child involved. Maintaining good relationships with the other parent goes a long way in avoiding difficulties further down the line.

Can a grandparent apply to the Family Court to see a grandchild?

Yes, but grandparents do not have an automatic right to apply to court to see a grandchild in the same way as a parent may apply to see and spend time with their own child. However, the Family Court would rarely refuse permission (or leave) for a grandparent to make an application, providing there is no good welfare reason why it should not, providing they can show a close and enduring relationship exists. Also, as a family member, permission is not required if a child has lived with a grandparent for a period of one year prior to the application being made.

How can I apply to see my grandchild if I’m being prevented from doing so?

It is important that early advice from an experienced child and family lawyer. Time can be of the essence and leaving matters too long can engrain difficult circumstances. Unless there are urgent circumstances, getting an initial court hearing will take a minimum of four weeks or more in any event, and as a first step, you will be required to attend upon a Mediation Information and Assessment Meeting (MIAM) to see if it possible to resolve matters with the assistance of a Mediator.

What orders can the Family Court make?

The court could make a Child Arrangement Order for a grandchild to spend time with a grandparent, in the same way as it could for a parent. Each family is different though and no two cases are the same. Just because you may have heard that one grandparent has obtained a certain order, it doesn’t necessarily follow that you will.

If you are affected by any of the issues raised here, please do get in touch. We’re here to help you.

Surrogacy: latest news

surrogacy latest news

Surrogacy: latest news

The number of parents having a baby using a surrogate in England and Wales has almost quadrupled in the last 10 years, according to new figures. Parental orders, which transfer legal parentage from the surrogate, rose from 117 in 2011 to 413 in 2020. Two-thirds of applicants are now mixed-sex couples often in their 30s or 40s. The report is by the University of Kent and My Surrogacy Journey, a non-profit organisation which supports surrogates and intended parents. What exactly is surrogacy, what does it involve, and what are  your rights?

Senior Associate Nicola McDaid explains.

There are a number of differing types of surrogacy now available, and UK law supports same-sex parents conceiving through surrogacy in the same way as it does different-sex couples.

There is what might be termed traditional surrogacy, when the surrogate provides her own eggs to achieve the pregnancy. The intended father, in either a heterosexual or male same-sex relationship, provides a sperm sample for conception, through either self-insemination at home or artificial insemination with the help of a fertility clinic. If either the surrogate or intended father has fertility issues, then embryos may be created in vitro and transferred into the uterus of the surrogate.

Gestational surrogacy, when the surrogate doesn’t provide her own egg to achieve the pregnancy, is when embryos are created in vitro (the literal translation of which is “in glass”, in this case meaning outside their normal biological context), and transferred into the uterus of the surrogate, using the eggs of the intended mother, fertilised with sperm of the intended father or donor.  Alternatively, it might involve the eggs of a donor, fertilised with the sperm of the intended father, where the intended mother cannot use her own eggs, or the intended parents are a same-sex male couple.

Your rights as a donor, a surrogate or an intended parent

Your rights differ depending on whether you are the donor, the surrogate, or the intended parent(s).

A typical situation is when a couple finds a surrogate, and all parties draw up, and agree to, a contract whereby the baby is placed in said couple’s care when s/he is born. However, there are certain issues of which you should be aware:

  • Surrogacy arrangements and contracts before/after birth are not legally binding in UK law, and do not transfer parental responsibility, which means that the surrogate (in effect the birth mother) remains the child’s legal mother until the court makes an order removing her parental status. The woman who gives birth to a child is always considered the legal mother in UK law, even when using a donated egg
  • Intended parents can make an application for a parental order which reassigns parenthood fully and permanently, and extinguishes the legal status and responsibilities of the surrogate (and her husband or wife.) Same-sex parents have been able to apply for a parental order since 6 April 2010.

How do you become a child’s legal parent?

As outlined above, you can apply for a parental order; if you are applying with a partner, you must meet the following criteria ( although this can be subject to interpretation and without question is ripe for amendment):

  • one of you must be genetically related to the child – in other words, be the egg or the sperm donor
  • you must be married/civil partners/living as partners in an enduring family relationship
  • have the child living with you
  • reside permanently in either the UK, Channel Islands or Isle of Man
  • You must apply within six months of the child’s birth

If you are applying as a single person (enforced since 3 January 2019)

  • you must be genetically related to the child in other words, be the egg or sperm donor
  • have the child living with you
  • reside permanently in either the UK, Channel Islands or Isle of Man

Whichever the scenario, the court must be satisfied that you have freely, and with full understanding of what is involved, agreed unconditionally to the making of the Parental Order.  What’s more, the court must be satisfied that no money or other benefit ( other than expenses responsibly incurred) has been given or received by either applicant(s), unless authorised by the court.

If neither you nor your partner are genetically related to the child, adoption is the only way you can become the child’s legal parent.

For many, the surrogacy journey can be full of potential pitfalls and it is important that you research the subject as fully as possible; we would certainly advise you consult a lawyer well-versed in the subject.

For example, if you donate sperm through a Human Fertilisation and Embryology Authority (HFEA) licensed clinic, you will not:

  • be the legal parent of any child born
  • have any legal obligation to any child born
  • have any rights over how the child will be brought up
  • be asked to support the child financially
  • be named on the birth certificate

Bear in mind that if you use an unlicensed clinic to donate sperm, you will be the legal father of any child born from your donation, under UK law.

Some people, who consider the UK’s laws with regard to surrogacy to be restrictive, may seek help abroad. However, bringing a surrogate-born baby back into the UK is a legal minefield.  You can read more about international surrogacy here.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Back to school – or not?

Laurence Fox back to school or not covid children

Back to school - or not?

Laurence Fox, who shares two sons, Winston, 12, and Eugene, nine, with ex-wife Billie Piper, has once again hit the headlines, this time in relation to the “anti-vaxx” row. He has claimed he will take his sons out of school should vaccinations be rolled out for 12-year-olds, saying he fears they will have the Covid jab without his permission.

The question is, can a parent remove a child from school in the first place?

Family Law Associate Melissa Jones looks at the options available.

There is no plan – as of yet – for children in schools to be vaccinated before they return to school in September. But were such a plan in place, would a parent be able to stop their children from going to school? Given that there is a central government policy stating that children must attend school, any parent stopping their child from doing so would be appear to be in contravention of this policy, and likely subject to fines.

Mr Fox appears to be suggesting is that he wants to de-register the children and home school them. To do so, he would need the other parent’s permission as they share parental responsibility (given that they were married to one another) and need to make important decisions like education in consultation with one another.

What is parental responsibility?

Parental responsibility is as per section 3(1) of the Children Act 1989 (CA 1989) which confers all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.

What happens if you cannot agree on home schooling?

If parents cannot agree arrangements for their child or children in respect of their education, they can apply to court for a Specific Issue Order, and the court can address the issue of whether or not a child should remain at their current school or move to the other preferred school (in this case home schooling).

The court application

In the above scenario, if the other parent is strongly opposed to the change of school or home schooling, then they could apply to the court for a Prohibited Steps Order, which is an order that limits when certain rights and duties which can be exercised, such as making decisions about their education.

The court will consider the parents’ opinions and the best interests of the children. The children’s educational development, efficient home schooling techniques and underlying health issues in the family are some of the matters that will be considered by the court when deciding the issue.

Before making an application to the court,  it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to consider moving your child’s school, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move. With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

Given that children returning to school is imminent – some may have already started the new term – a parent may struggle to get an urgent court hearing, although it may be that the court fixes a date as soon as it can. In the interim, without an order or decision you will need to keep open communication with the other parent.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

What to do if you can’t agree about your children going back to school

post pandemic back to school

What to do if you can’t agree about your children going back to school

What happens if you want to continue to home school your children, but your ex wants them back in school? In recent weeks we are hearing from parents about strong disagreements on this challenging subject.

Family Law solicitor Heather Lucy looks at the options available.

If parents cannot agree arrangements for their child or children, an application can be made to the court for a remedy. Parents can also apply to court in relation to a Specific Issue, and the court can address the issue of whether or not a child should return to school.

If parents cannot agree arrangements for their child or children, an application can be made to the court for a remedy. Parents can also apply to court for a Specific Issue Order and the court can address the issue of whether or not a child should return to school.

The court application

A Specific Issue Order is an order from the family court to resolve a particular issue in dispute in connection with a child and a Prohibited Steps Order is an order that limits when certain rights and duties can be exercised, such as making decisions about their education.

The court will take into account the parents’ opinions and the best interests of the children. The children’s educational development, efficient home -schooling techniques and underlying health issues in the family may all be considered by the court when deciding the issue.

The court’s guidance to promote an agreement

Before making an application to the court, parents should try and agree arrangements as much as they possibly can.

This court guidance promotes as much communication as possible between the parties to enable parents to consider the children’s best interests. Therefore, an application to court should only be made if there is no hope of an agreement regarding the children’s schooling and very much as a last resort.

The court’s ability to hear an urgent specific issue application

Unfortunately, because of the pandemic and the resultant backlog of cases, there is still little time for the courts to deal with these issues; even if the case is an urgent one, there is no guarantee that the court will be able to hear the case before the children are due to go back to school. This may leave parents in limbo and wondering what to do. Mediation can be an option to see if an agreement can be reached, but both parents must agree to that route, so seeking legal advice may assist them as they attempt to reach that agreement.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer.

Please get in touch today – we are here to help you.

Love and marriage – the return

Love and marriage – the return

We’ve had such a great response to our previous Love and Marriage blogs that we thought we’d add some more quotes to our special selection of celebrity words of wisdom about love, relationships and marriage.

Because there’s no doubt that on this topic everyone has their own opinion: some have their own personal deal-breakers, some know for certain the one thing that will melt their heart – and a lot of people will tell you it takes hard work and commitment.

See if you agree!

Fiona Shaw

“I’m married to a very unusual person, but maybe it took a very unusual person to be willing to marry me.”  Fiona Shaw

 

 

marriage quotes

“There are people you have mad passionate affairs with and people who you marry. Marriage is finding somebody who you can raise a family with, grow old with and who you want to come home to.” Hermione Norris

 

 

Celebrities Visit BuzzFeed's "AM To DM" - October 15, 2019

“Marriage is like a graph – it has its ups and downs and as long as things bounce back up again, you’ve got a good marriage. If it heads straight down, then you’ve got some problems!” Dame Julie Andrews

 

 

Gwyneth Paltrow

“I asked my dad once: ‘How did you and Mum stay married for 33 years?’ and he said ‘Well, we never wanted to get divorced at the same time.’”  Gwyneth Paltrow

 

 

Will Ferrell - Rotten Tomatoes

“Before you marry a person, you should first make them use a computer with slow internet to see who they really are.” Will Ferrell

 

 

Mickey Rooney

“Always get married in the morning. That way if it doesn’t work out, you haven’t wasted the whole day.” Mickey Rooney (married eight times)

How to have a happy holiday when you’re separated parents

How to have a happy holiday when you’re separated parents

This year more than most, the summer holidays for separated parents can be a difficult and confusing period. Trying to agree if one or both of the parents should be able to spend time abroad with the children can prove to be a tricky subject.

Associate Melissa Jones examines the issues.

Any difficulties in the relationship may well be those of the parents, but it is the children who can reluctantly find themselves in the midst of adult arguments, confused that those to whom they look for guidance are not getting along and often incorrectly blaming themselves for either parents’ upset or even anger. It is easy and perhaps natural for a parent going through such a difficult time to concentrate on themselves at these times, but it is very important if trying to sort arrangements out amicably, not to lose focus of a child’s needs or emotional well-being when they may already be feeling overwhelmed and trying to understand why their parents might not be friends, as well as distress and confusion about their new family circumstances.

The child’s best interests

If charged with deciding, the court will determine matters in accordance with what is in a child’s best interests. As such, and even if it is not what you want to hear personally, try to listen to your children. They may well help you in taking a step back from your own bubble and decide what’s best for them.

Open lines of communication

Good forward planning and open lines of communication with the other parent are essential when working towards organise your children’s summer holiday. Despite past difficulties, there are families who are able to work together to the extent that they can spend a summer break together, although sadly this is not the usual situation. However, regardless of whether you and your former partner are on good terms or not, taking time to come to a mutual decision about what’s best is without doubt the best way forward: from agreeing a safe destination that both parents are happy with to arranging how and where the children are going to spend time with each of their parents over the holiday period, it is by maintaining these open lines of communication that you will achieve a good outcome.

We have seen arrangements agreed where the separated parents have both gone to the same resort or holiday area, and the children have spent one or two weeks with one parent and then spent another week or two with the other parent, meaning that travel arrangements are simplified and there is the smallest amount of disruption possible.

It isn’t easy but it needn’t be difficult either. A little bit of willingness to accommodate the other parent’s request – when they can get time off from work, or if there is a holiday home owned by relatives and can you take a break in the same region to make things easier – can go a long way. Here are McAlister Family Law we encourage our clients not just to try to achieve a respectful divorce, but to remain respectful of one another in the years after that divorce. If you can each try to give a little in order to reach an agreement that will suit everyone involved, particularly your children, in the long run you will be glad you did so.

If you are affected by any of the issues outlined here, please get in touch today. We are here to help you.

Why is it safe to arbitrate?

arbitration

Why is it safe to arbitrate?

The Family Court is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  Partner Liz Cowell explains.

 

18 months into the Covid-19 crisis and practitioners are finding that contested proceedings for financial settlement following a divorce are taking many months, if not years, to resolve.

This is partially because the Family Court is flooded with urgent Children Act cases and applications for protection from domestic violence.  These cases are understandably given precedents over financial matters and have increased during the pandemic.

Consent Order

The process itself to obtain financial relief from the court is a one-size-fits-all, the parties having to attend at least two court hearings before the case proceeds to trial, when they find themselves unable to agree a Consent Order.

Due to the overburdened family list, hearings are frequently “bumped” usually for the benefit of urgent Children Act proceedings.

Arbitration

It is the case that the Family Court itself is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  When an arbitration takes place, an award is made by the arbitrator which is then turned into a Consent Order which the court will ratify.

The advantages of using arbitration is that it provides complete privacy, there is consistency, it is a speedier process and although the arbitrator needs to be paid it is cost efficient as there needs to be far less attendance at court and the process can be fine tuned to each and every separate application.

The Family Court’s support for arbitration could not be more clearly set out than in a recent High Court decision of Mr Justice Mostyn A -v- A [2021] EWHC1889 (FAM).

In this case the husband, who had agreed to arbitrate then chose not to be bound by the arbitrator’s decision and tried to get the matter set aside, using an expensive route to appeal to the High Court.  He failed.  Mr Justice Mostyn set out clearly in his judgment the correct way to pursue a challenge to an award – and he also found for the wife.

Hopefully his decision will help to persuade the parties that the process of arbitration provides closure, and the common excuse of some practitioners – that there is no proper means of appeal – has been finally put to bed.

Mostyn J emphasised a previous High Court decision of Lady Justice King in Hayley -v- Hayley [2020] EWCACIV1369 which confirms that a “challenge to an arbitral award should be dealt with broadly the same way and subject to the same principles as a financial remedy appeal in the Family Court from a District Judge to a Circuit Judge” and that this was how he was going to proceed to deal with the husband’s various applications before him.  He helpfully added an Appendix to his judgment which gives clear guidance to practitioners as to how to challenge an Arbitral Award, thus giving practitioners protection before proceeding in this manner.

If you are affected by any of the issues raised here, please do get in touch today. We are here to help you.

I want a divorce: your step-by-step guide

divorce procedure heather

I want a divorce: your step-by-step guide

“I want a divorce.” But what is the process – what do you need to know? Heather Lucy, family law solicitor, is here to help you with a step-by-step guide covering the divorce procedure.

Special Procedure

Don’t be frightened by this term.  All it means is that when you apply for a divorce in England and Wales, the process, in the vast majority of undefended cases (that is, a case where one of you wants to divorce and the other does not oppose), is called Special Procedure.  All this means is that a judge will consider the divorce petition on paper and neither you nor your spouse will need to attend court to explain why your marriage has broken down.

Please bear in mind there is no such thing as a “quickie” divorce, no matter how many times you might read about this in the media. If you want more details on the length of time a divorce might take, please take a look here.

It’s also important to remember that the reason for the breakdown of your marriage rarely impacts on how the finances are divided.  It is a common misconception for example that adultery makes a difference – more details here. The court will deal with the financial consequences of the end of the marriage separately from the process of obtaining the divorce itself. You do not need to wait to resolve financial arrangements before divorcing, but you should not divorce without first getting advice how it may affect you – I really want to stress this point.

Before you apply for a divorce, you will need either your original marriage certificate or certified copy, as well as a certified translation if your marriage was abroad and the document is not in English.

Applying for a divorce

The divorce procedure is started by sending to the court a divorce application known as the Petition. The party making the application is known as the Petitioner, the receiving party is known as the Respondent, and either party to the marriage can apply to the court for a divorce.

Where possible, we will try to agree with your spouse which party will initiate the process and the grounds for divorce.  This will then allow the divorce procedure to continue on an undefended basis.

Grounds for divorce

There is only one ground for divorce, namely that the marriage has “irretrievably broken down”. To evidence this, the petitioner (applicant) for the divorce will need to rely upon one of

The Five Facts

In the Petition, the Petitioner has to prove that the marriage has irretrievably broken down by evidencing one of five specific statutory facts:

– Adultery

– Unreasonable behaviour

– Desertion (in practice, this is rare, and difficult to prove)

– two years’ separation with agreement by both that there should be a divorce

– five years’ separation (the consent of the Respondent is not needed)

The most common facts relied upon are adultery, or unreasonable behaviour.

The Decree Nisi

Once the divorce petition is issued by the court, it is sent to the Respondent who then usually has 14 days (possibly longer if the Respondent doesn’t live in the UK) to complete return the Acknowledgement of Service to the court.

The court will then send a copy of the Acknowledgement to the Petitioner who then completes and files an Application for Decree Nisi and a supporting Statement.

When the papers are received by the court they will be considered by a judge who, if satisfied with the ground for divorce, will issue a Certificate of Entitlement for Decree Nisi. This will list a hearing date several weeks later, at which the Decree Nisi will be pronounced. This hearing can also be used to consider any applications for or objections to any costs orders sought, if not already agreed.

Do bear in mind that the Decree Nisi is actually an interim stage in the divorce procedure – it isn’t the final divorce, it is a document that says that the court does not see any reason why you cannot divorce.  Once you have your Decree Nisi, you can apply for the

Decree Absolute

Usually, the Petitioner waits until the finances have been agreed and approved by the Court before applying for the final decree of divorce, known as the Decree Absolute.  If the divorce has taken place before the finances are resolved and one of the parties dies then, potentially, benefits to which the other would have been entitled to by virtue of the marriage will be lost (an obvious example is a spouse’s pension).

International divorce procedure

Some people may be entitled to begin divorce proceedings in more than one country: if that is the case, we can assist in helping you to decide which is the better jurisdiction for you (and your family) as the divorce process varies widely from country to country, even within Europe, including as to financial outcome, timing and arrangements for your children. Speed can be of the essence in making the decision.  If you think this might apply to your situation, please do get in touch without delay.

Respectful divorce

Finally, I’d like to stress that here at McAlister Family Law we believe very strongly in achieving what we call a respectful divorce, wherever possible.  Our managing partner, Amanda McAlister, has spoken about this extensively in the media and shares her advice here as to the best way forward for couples who are divorcing.

If you are affected by any of the issues raised here, please do get in touch today. We are here to help you.

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