FAQs

The date of separation is often determined by the date you and your spouse/partner began living separately. Often, this is when you stop living together in the same home. Sometimes, however, it is not possible to have separate homes and you continue to live together under the same roof. If this happens the date of separation is likely to be classed as the date you began living separate lives under the one roof at home, such as eating meals separately, sleeping in separate bedrooms, no longer doing one another’s laundry etc. 

You may never wish to formalise or legalise your separation but if you do, you have some options available to you, which are:

1. Separation Agreement
2. Judicial Separation
3. Divorce

A Separation Agreement is an agreement setting out the terms of your separation. The issues often addressed in a Separation Agreement are arrangements for the children, financial issues such as who will occupy the family home and who pays the bills, and sometimes even arrangements for the family pet(s). The date of separation can be included within this document. Be aware, a Separation Agreement is not legally binding, but it would carry weight if certain criteria are met. 

Judicial Separation is a legal way to formally separate. Judicial Separation is often chosen where you do not wish to get divorced (for religious or personal reasons), you have been married for less than a year (and so cannot issue divorce proceedings yet) or you just want time to work on the marriage.  An application would be made (either jointly or a sole application by one spouse) to state a Judicial Separation is sought. An Order of Judicial Separation is then made once the Court is satisfied the criteria has been met. At the conclusion of Judicial Separation proceedings, you are legally separated but you do remain married to your spouse. To formally end the marriage you would need to issue Divorce proceedings. 

Divorce proceedings legally end the marriage once finalised.  An application would be made (either jointly or a sole application by one spouse) to state the marriage has irretrievably broken down. Two orders are made (Conditional Order and Final Order) in the proceedings which takes between 6-9 months usually. Once the Final Order is granted, the marriage is legally dissolved. 

Whilst adultery may be the reason for instigating divorce proceedings, the law changed in England and Wales on 6 April 2022 removing the ability to “blame” your spouse for the breakdown of the marriage. 

Prior to 6th April 2022 the ground for divorce was that your marriage had irretrievably broken down based on one of five facts namely; behaviour, adultery, 2 years separation, 5 years separation or desertion.

Now you no longer rely on a “fact” in the divorce application and instead, you have to confirm in a statement that your marriage has irretrievably broken down. This is all that is required (along with other general information about you, your spouse and the marriage) in the divorce application to start the proceedings. The Court simply must be satisfied your marriage has broken down irretrievably. 

The change in the law removes the ability to state within a divorce application that adultery has been committed by your spouse.  This can be distressing when your spouse has had an affair that led to the breakdown of the marriage but, in the court’s eyes, more often than not the reason for the divorce has no bearing on any other issues arising such as arrangements for the children or financial matters. 

The short answer to this question is no. In and of itself, an Islamic marriage contract or ‘Nikah’ is a religious marriage ceremony binding under ‘Sharia Law’ only. Whilst you, your friends and your family may consider that you are married after an Islamic ceremony, a common misconception is that such a ceremony is legally binding in England and Wales as well. If you have undergone a ‘Nikah-only ceremony’ and have not registered your marriage in the UK through a civil ceremony, then you are considered cohabitees only in the courts of England and Wales.

There are limited exceptions to this rule. If for example you married in a mosque, which has been registered for the solemnization of marriages in England and Wales (section 41 of the Marriage Act 1949), then the marriage may be considered legal. To clarify whether your mosque is registered you can search government records of the places of worship registered for marriage, which can be found here: – https://www.gov.uk/government/publications/places-of-worship-registered-for-marriage

Alternatively, if you are a British national who has travelled overseas and have married via an Islamic marriage ceremony, your marriage may be considered legally valid if certain criterion has been met within the specific country you have travelled to. Your marriage will be recognized in the UK if both of the following apply:

• You have followed the correct process in the country where you got married for it to be legally recognized. For information on what specific procedures need to be met in the country you have married, visit: https://www.gov.uk/marriage-abroad; and
• The marriage would be allowed under UK law. Please see the governments explanatory note on allowable marriages here: https://www.gov.uk/marriages-civil-partnerships

So, what does this all mean practically? 

If you have validly registered your Islamic ceremony (through a civil ceremony or other method detailed above), upon separation you will need to follow the divorce process for both Islamic and civil divorces. All financial matters and legal matters should be addressed during the civil divorce process, as an Islamic Sharia Council does not have the power to legally decide how your assets are to be settled.

In circumstances where the Islamic ceremony has not been validly registered, on separation as a cohabitee you will not have the same automatic rights as a couple in a civil marriage. As there is no such thing as a ‘common law spouse’ within the courts of England and Wales, any such any claim to ‘financial remedy’ for a cohabiting couple will largely be limited to only claims against property in which you have a legal or beneficial interest in. Such an application would be a civil claim brought under the Trust of Land and the Appointment of Trustees Act 1996, which is far more limited in its application. Please see our blog on this topic for further information on how assets are dealt with upon separation for cohabiting couples: When unmarried couples split: what happens to your property?.

Unfortunately as much as 60% of married Muslims in the UK have fallen under the misconception that their Nikah will be recognised in the UK and have not registered their marriage, this widespread lack of awareness can often leave people in the Muslim community very financially vulnerable upon separation, particularly women. Separations can at the best of times be difficult to navigate, so if you have concerns about your position upon separation and question whether your Islamic marriage is indeed valid in the UK, please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

In short, the answer is yes. Mediation can be an effective and efficient way of reaching an agreement amicably.

Usually, individuals who wish to take part in mediation are hoping and wanting to reach an agreement and relatively quickly.

A mediator can help parties cut through issues, communicate and facilitate discussions with the overall aim of reaching an agreement. The Family Mediation Council outlines that typically, it will take between 3 – 5 mediation sessions to reach an agreement (with recommendations of at least 1 week between each session).

The charges from mediator to mediator do vary, but inevitably overall costs are usually cheaper than going to court because:

1. Agreements tend to be reached after a number of weeks, whereas the court process would likely stem over a number of months (or even years in particularly complex cases).
2. Legal advice is required only at the point of reaching a settlement and can be limited to:

• Advising on the ‘fairness’ of the agreement and the legal implications of it.
• Drafting the order required to turn the agreement into a legally binding consent order (which can be dealt with a lot of the time with a “fixed fee”).

3. The overall cost of the court process does however depend on how the individual chooses to fund their court proceedings and the level of legal advice and input they require (referred to below).

Individuals who are on a low income or not working may also qualify for legal aid to assist with mediation costs generally (to include mediation to discuss financial issues).

Further, the government in March 2021 also introduced a scheme to help families more generally to fund the cost of mediation by providing a £500 voucher towards their mediation costs. The voucher is available for mediation relating to:

• A dispute/application regarding a child;
• A dispute/application regarding family financial matters when a party is also involved in dispute/application in relation to a child (and many people of course fall into this category).
• If, however mediation sessions are required solely in respect of financial issues the voucher is not available and the mediator’s costs will need to be privately funded (unless the individual qualifies for legal aid).

More information about the funding of family mediation can be found here:

https://www.gov.uk/guidance/family-mediation-voucher-scheme

https://www.gov.uk/legal-aid

Court Proceedings

Sometimes, court proceedings are inevitable. They can however become costly very quickly and can run into many thousands of pounds, particularly when emotions are running high and when issues become particularly acrimonious.

It is recommended that legal advice is sought throughout (to assist in drafting documents, statements, and to ensure consistency of evidence) with legal representation usually required at court hearings from solicitors or barristers.

Each case is different and at the outset of a case (and at regular intervals during it) a client’s legal representative will provide a realistic estimate of costs to each stage of the process and provide advice as to how best to keep costs proportionate to the issues in the case.

Sometimes the very act of issuing a court application may be enough prompt the other party to engage and an agreement can be reached at any time. So it’s not every case that costs become substantial or protracted.

In addition, if individuals choose not to instruct a solicitor/barrister and they represent themselves in court, then costs will be limited to any court fees required (which usually are paid at the beginning of the case only). All options should be discussed between a client and their legal representative at the outset of the case.

Legal aid is no longer available for financial proceedings generally (even for low-income families). It is available in some circumstances including cases of domestic violence and in children cases where there has been domestic violence or there are care proceedings. Financial proceedings do, therefore need to be privately funded in almost all cases.

On 6th April 2022, the ‘’no-fault’’ divorce was introduced. There is only one ground for divorce which is that the marriage has irretrievably broken down. Under the new divorce law, there is no longer any need to assign blame and you do not need to provide the court with an additional reason for the divorce such as: adultery; unreasonable behaviour; desertion; separation for more than 2 years; or separation of more than 5 years. The purpose of this change in divorce law is to make divorce easier, reduce conflict and make the process less acrimonious.

When can you get a divorce? 

You have to be married for one year before you can start divorce proceedings

Divorce process

You need to start divorce proceedings to bring the marriage to a formal end. You can either make a divorce application on a sole basis or a joint basis.

The application is submitted online via the online divorce portal. The Court requires a scan of your original marriage certificate. There is also a court fee payable when making the application

Once an application has been made for divorce and the other spouse has confirmed to the court that they have received the divorce application, there is a ‘’cooling-off’’ period of 20 weeks from the date of the divorce application. Only when that 20-week period has elapsed can you confirm to the Court that you wish to proceed with the divorce and request the next stage in the process which is known as a Conditional Order.

Once that confirmation has been provided, the Court will issue a ‘’Conditional Order’’. You are still married at this stage, but the Conditional Order is important as only once it is granted does the Court have the power to approve any financial agreement

6 weeks and one day after the Conditional Order is made the Final Divorce Order can be applied for. Once the Final Divorce Order has been made you are officially divorced. Any financial order becomes enforceable once the Final Divorce Order is granted.

There is now no option to defend a divorce, save for exceptional circumstances (for example, the Court not having jurisdiction to deal with the matter or the marriage not being valid in the first place). This means that, even if one spouse does not agree to the divorce, the Court will grant the divorce regardless, on the basis that one spouse has confirmed to the Court that the marriage has irretrievably broken down. However, you have to prove that the other spouse has received the divorce application.

How much does divorce cost? 

The court fee for starting a divorce in England and Wales is £593. You might be able to pay a reduced court fee if you are on a low income or receive certain state benefits.

For advice on how to get on divorce, please contact a member of our Team.

The legal costs involved with divorce are, rightly, a concern for many people when considering whether or not to get divorced. In terms of the actual divorce suit, there is usually a court fee of £593.00 payable on filing the application, unless parties can claim an exemption from paying the costs. This fee is either paid directly to the court by a person filing the divorce petition or, if that person is instructing a solicitor, then the solicitor might often pay the divorce fee using monies from their client that are held on account.

In terms of legal representation for the divorce suit, solicitors offer a wide range of options from fixed-fee divorce packages to charging based solely on a solicitor’s hourly rate.

At McAlister Family Law, we offer a fixed fee divorce package of £550 plus VAT (£110) and the Court fee of £593. As such, our Divorce fixed fee package will cost £1,253. We also offer discounted rates for Police officers of £400 plus VAT (£80) plus the court fee of £593. As such, our discounted Divorce fixed fee package for Police officers (serving or retired) will cost £1,073.

It is important to note that the divorce suit, and matters around the matrimonial finances (i.e. the family home, cash savings, pensions etc.) and arrangements for any children of the family, are entirely separate to the divorce suit and will not automatically be resolved when filing an application for divorce. Issues around the matrimonial financial element of the case, arrangements for children, or other issues, will also not caught within the aforementioned fixed fee structure. Usually, matters involving the matrimonial finances and/or arrangements for children will be charged at the respective hourly rate of the solicitor who has conduct of the file(s) / matter(s). There are ways that you can minimise how much a case involving matrimonial finances, or arrangements for children, will costs.

The easiest, and most simple, way to do this is to ensure that you have communicate the instructions to your solicitor clearly and that you are organised when gathering and preparing any documents that have been requested by your solicitor, the court, or the other side. It is also possible to minimise the legal fees that you might incur by dealing with matters as amicably, and sensibly, as possible. It may be both beneficial in terms of maintaining a level of amicability, and minimising your legal fees, to attempt mediation before seeking the assistance of a solicitor when considering the division of any matrimonial assets.

Essentially, if it is possible to reach some form of agreement with your spouse in relation to the matrimonial finances and/or arrangements for any child(ren), prior to instructing a solicitor to act on your behalf, your legal costs will usually be lower than if you are instructing a solicitor to make the first suggestion of negotiations to your spouse.

A divorce in England and Wales takes at least six months. This is because there are two key waiting periods until a divorce can be finalised.

1. There is a 20-week ‘’cooling off’’ period from the date the divorce petition is applied for. Only when that 20-week period has elapsed can a spouse confirm to the court that you they wish to proceed with the divorce and request that the Conditional Order is granted. The reason for this is to give the married couple plenty of time to reflect and decide whether they want to proceed with the divorce.
2. Once the Conditional Order has been granted there is a six-week and one-day waiting period until a spouse can apply to the court for the Final Divorce Order.

With these waiting periods, the process takes a minimum of 26 weeks. However, there a number of common issues that can delay the divorce process, including: –

• If there is delay in the completely the court courts or you are having difficulties with serving the other spouse with the divorce application

• It is dependent on how quickly you are able to reach a financial agreement within your divorce. Negotiating a financial agreement can take between 6-12 months.

• Most couples will be advised not to make the application for the Final Order until a Financial Order is in place as it would bring to an end to inheritance rights which could be problematic if either spouse were to pass away before a financial agreement is reached. Divorce can also affect pension right.

People often have a number of worries when they are going through a divorce including practical, financial and emotional concerns. One of the biggest concerns for parents though is the impact that it will have upon their children and when and how they should tell them.

There is no “one size fits all” answer to this as it will depend on the ages and personalities of the child or children involved. It will also depend on the particular circumstances of the separation.

We have set out below some general guidelines, but you could also have a look at some of the books on our reading list for hints and tips on how to approach this difficult task.

Who?

Ideally parents should tell the child or children together. This might be difficult, particularly if one parent is still struggling with the idea of the separation themselves, but it helps if a united front can be presented. It can also avoid a child feeling that they are being asked to take sides.

What?

It is best to be honest with your children, but they do not necessarily need all of the details (for example if one person has had an affair), particularly if they are young. It might help to plan out together in advance what you are going to say, who is going to say it and how you might deal with the questions that are likely to be asked.

Where?

It is probably best to do it at home as you do not know what the reaction might be. There may be tears, anger or just withdrawal initially and it can be harder to deal with these away from home, particularly if you have more than one child and they all react differently.

When?

This can be a difficult decision to make. Ideally, you want to be able to set out a plan to them of how the future might look in terms of where everybody will be living, what time they might spend with each parent and so on. However, it may take time to agree on these details and in the meantime the child or children may simply work out what is happening for themselves and feel you have not been honest.

This is going to be about balance and will very much be dependent on the circumstances and the individuals involved.

How?

The situation needs to be explained as calmly as possible, with as much reassurance as possible (without trying to sugar coat) and you should avoid blaming the other parent.

It is inevitable that both parents will be dealing with their own emotions but what should be avoided, if possible, is one parent simply blurting it out without any planning and/ or without letting the other know of their intentions. This can make an already difficult situation worse.

If you have any questions about this issue or any issues relating to divorce, separation, financial matters or children please contact a member of our specialist family law team.

In short, no, you do not need a solicitor to get divorced. There is, currently, no legal requirement for people to instruct a solicitor to deal with their divorce. Many people opt to act as a ‘litigant in person’ and represent themselves within divorce proceedings, in order to save money that would be otherwise spent on legal fees. However, it is advisable to get legal advice in relation to the divorce suit, financial settlement, and other issues such as child arrangements before you start your application for divorce. It must be considered whether acting as a litigant in person, and effectively representing yourself in any future court proceedings, may prove cost-effective in the long-term.

Just because you can represent yourself within a divorce suit or financial remedy proceedings, doe does not mean that it is always a good idea. Issues around divorce are complex, especially when considering the issues of financial settlement and the potential litigation that might be needed to deal with matrimonial assets. Even if the divorce process may seem fairly straightforward, there are numerous trapdoors that need to be highlighted, and navigated, and without the assistance of a solicitor you may find yourself falling straight into one.

It is not possible to list all of the potential pitfalls with being a litigant in person, with potentially the most pitfalls being in relation to the financial element of the divorce. Without proper legal advice, and representation, many people will simply not understand what should happen to assets such the family home, or how assets such as a pension be shared. Furthermore, the division of more complex assets such as stocks, shares, and cryptocurrency, is often very complex and therefore fairly robust legal advice is needed, taking into consideration both recent caselaw and statutes. There are also possible penalties for not meeting court appointed deadlines, or not following the correct process within litigation.

Not only are family law proceedings, including divorce, financial remedy, and child arrangements, complex but they are also extremely time-consuming and emotionally draining. Instructing a solicitor can not only help navigate the complex landscape of legal proceedings, but a solicitor will also be able to offer some level of protection from the stressors of possible litigation.

When divorcing, people will often hear about mediation and will be advised to attend it to try and resolve disputes (whether for issues concerning the children or division of the marital finances).

What is mediation? Mediation is a form of what is called “Alternate Dispute Resolution” (ADR). It is aimed to help individuals resolve matters amicably, out of court. A mediator is an impartial person who is trained to help divorcing couples explore their issues; the mediator will assist the parties with communication and reaching an agreement over the specific issue in dispute. It can be an effective way to resolve issues and keep lines of communication open, so it is usually recommended where it is appropriate.

However, no one can and should be actively forced to mediate. If that were the basis of mediation in every scenario it wouldn’t be successful (as the intention of mediation is that it is a collaborative and non-acrimonious way to discuss issues and resolve disputes).

There are some circumstances though where procedurally mediation needs to have been considered and a decision made as to whether it is appropriate or not on the individual circumstances of the case.

For the purposes of actually starting the divorce process (ie preparing a Divorce Application itself) there is no requirement to attend mediation at all.

However, when individuals need to make an application to court in respect of the finances, the person bringing an application needs to discuss with a mediator whether mediation is appropriate for their case. Individuals bringing such an application need to attend a “Mediation Information and Assessment Meeting” (MIAM) to discuss with a mediator whether mediation is appropriate in the circumstances and whether the other party should be invited to a mediation session. The court, will, however want to know it has been considered as an option.

There are of course some cases where mediation would not be an appropriate way of resolving a dispute (and in those circumstances attendance at a MIAM may not even be required),

This is the case when:

1. There has been domestic violence (as this would mean that a person would have to actively mediate with their perpetrator which would be inappropriate and could put an individual at risk).
2. There is some exceptional urgency, for example if there are urgent issues which need to be determined (for example if assets need to be frozen and to attend mediation would give that person a “heads up” as to an urgent application being made).
3. There are already ongoing court proceedings.
4. Mediation has already been attempted in recent months and has broken down.

In summary, mediation can be an extremely effective tool and the advice would always be to use it as an amicable way to resolve a dispute in the first instance (unless of course there are reasons as to why it is not appropriate).

The divorce process was often criticised and maligned as being an outdated and antiquated system in the courts of England and Wales. Brought into effect through the Divorce Reform Act 1969 and later consolidated into the Matrimonial Causes Act 1973, the act enabled either party to seek a divorce following the ‘irretrievable breakdown of the marriage’. 

Under the previous system separating couples were required to prove one of five ‘facts’ to satisfy the court that the marriage had irretrievably broken down, they were: adultery, unreasonable behaviour, desertion, 2 years separation with consent or 5 years separation.

Two of the facts required parties to lay blame at the feet of the other, whilst the remaining three required parties to separate for a minimum period of 2 years. 

Could one party unilaterally stop a divorce petition under the old process?

Parties could contest petitions for divorce on the basis that they genuinely did not believe that the marriage had broken down, and that there was realistic prospect of reconciliation. Others may have also entered a defence to the divorce petition for tactical reasons be it either in connection to the children or the finances. Either way, if the party genuinely believed that the marriage had not broken down irretrievably then they had they right to defend the divorce proceedings.

A party could look to challenge the validity of a petition by contesting the fact relied upon by the petitioner, effectively looking to establish that they had no jurisdiction to bring a petition for divorce in the first place. This was best exemplified in the very public case of Owens v Owens in which Mrs Owens sought to separate from what she described as her controlling husband.

Mrs Owens was unfortunately unable to proceed with her divorce as the Supreme Court refused the petition on the basis that they considered Mr Owens behaviour did not meet the threshold for an unreasonable behaviour petition.

How are divorces treated today, and can they still be stopped?

The case of Owens v Owens highlighted the inadequacies of the previous divorce process. Through the introduction of the no fault divorce on 6th April 2022, the court looked to avoid scenarios that faced by Mrs Owens. In removing the need to apportion blame, or to ensure parties were required to wait at least 2 years to separate, a modern and amicable process was envisioned.

However, through removing the apportionment of blame the court has impacted a parties’ capacity to contest a no-fault divorce application. As there is effectively no fact in which to contest a party can no longer contest a divorce or dissolution unless there is a jurisdictional issue.

Can you stop a divorce if you reconcile?

A question often asked is ‘if I have changed my mind about divorce and wish to cancel the proceedings, can I?’ The short answer is yes, provided both of the parties agree.
If you reconcile with your civil partner or spouse, at any point in your proceedings, even after the pronouncement of Decree Nisi (the middle stage of a divorce) you can request that the that court to rescind the divorce application/petition. Unfortunately, if for whatever reason your reconciliation has not worked out after application has been rescinded, you will be required to issue a new application for divorce and effective start the process from the beginning.

Once Decree Absolute or a Final Order has been granted (the final stage of a divorce) unfortunately your cannot cancel your divorce as the marriage has already been brought to an end. You are however free to remarry your significant other should you wish to become spouses again.

Should you any questions about getting a divorce or the divorce process entails please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

Absolutely! In fact, you are very much encouraged to do so.

The benefits

Coming to an agreement with your former spouse without going to court can have a wide range of benefits. One of the first, which should not be underestimated, is that you avoid the stress of proceedings which can often increase animosity. Secondly, someone signs up to an agreement (however much they may feel that they have compromised), it is more likely that they will stick to its terms than if an order if imposed upon them by the court. There are obviously legal routes that can be taken if someone does not abide by a court order, but avoiding the stress and associated costs is a huge benefit.

Further, you can save a lot of money by coming to an agreement with your former partner. The fees involved with financial remedy proceedings are often substantial. Your solicitor will work with you to keep them as low as possible, but the matrimonial pot (what is available to be split between you and your ex) will be reduced.

How do we do it?

You might be fortunate enough to be able to sit down with your former partner and agree how you should divide your assets with no outside input. If not, hope is not lost. Mediation is an option that the courts are very keen for more people to take. This involves a qualified, neutral, third party sitting down with you both (either together or one at a time) and facilitating discussions. You will most likely be asked to bring financial information with you to the sessions. The mediator will then be able to offer some guidance of what the court would consider if they were asked to intervene. Sometimes the simple presence of a third party can help keen discussions on track.

A popular alternative is negotiations through solicitors. Solicitors can guide you through a disclosure process (working out what is in the pot) and negotiating settlement (splitting it). This often follows the same structure as the court process but without the costs of attending hearings.

If mediation and negotiations through solicitors do not work and you still want to avoid the court process, there are other forms of ADR (Alternative Dispute Resolution). One of these is arbitration. This is a lot more akin to the court process but has the benefit of a much swifter resolution. You and your spouse would need to agree on a qualified arbitrator who would then hear evidence from you both before deciding how the assets should be divided. An arbitrator’s decision is binding.

What do we do when we’ve agreed?

When you and your spouse have reached an agreement, it is very important to have it drawn up into an agreement and approved by the court. This means that the agreement is enforceable and that all rights/obligations you and your former partner had towards each other by virtue of your marriage are brought to an end subject to the contents of your agreement.

Completing the paperwork for the court can be a little tricky. There is a form to fill in that sets out all of the information that the judge reviewing your agreement needs to make sure that it is broadly fair. They will not dive into the minutiae of the agreement, but they do check to make sure that one party is not being left significantly worse off than the other. It is sensible to take expert advice on turning your agreement into a court order and filling the relevant paperwork so that you have peace of mind in the future that what you both intended is what the order says.

In a nutshell, yes you can. There may well circumstances that necessitate separating couples living together whilst going through a divorce and this has never been more prevalent then in recent times, going through the covid pandemic and entering a cost-of-living crisis.

There can also be a myriad of reasons why someone may want to continue living with their spouse whilst divorcing, be it wanting to save money whilst separating to wanting to maintain a semblance or normality, to try and lessen any upheaval for children.

Previous Divorce System

Living arrangements were a lot more relevant under the old divorce system. Whilst the basis for divorce remains the same being the ‘irretrievable breakdown of the marriage’, the court have dispensed with the necessity to lay blame at one another’s feet.

Previously, separating couples would have to satisfy one of five ground to prove that a marriage had indeed irretrievably broken down. When looking to establish one of the grounds, periods of cohabitation would have a bearing on whether it could be relied upon.

Adultery: If you cited adultery as the basis of your divorce and continued to cohabit with your spouse for a period of 6 months, or several periods that totalled six months, you could not rely on this ground.

Unreasonable behaviour: If unreasonable behaviour was cited, justification would need to be given to the court as to why you continued to live with your spouse during this period.

2 years separation with consent/ 5 years separation: Parties would need to satisfy the court that they have been ‘living apart’. Whilst separating spouses could look rely on this ground whilst they lived under the same roof, they would have to satisfy the court that they had completely separate lives, this would be to the extent that they had separate laundry, eating and sleeping arrangements. This was best exemplified in the case of Hollens v Hollens.

Desertion: – To rely on this ground, a party would need to prove to the court that they had been abandoned for a period of no less than 2 years. This could not be the case if you were still living under the same roof.

Current Divorce System

After the introduction of no-fault divorce on 6th April 2022, the courts of England and Wales have reimagined a system that was over 50 years old. In removing the necessity to say that your spouse’s behaviour was the reason for the marriage ending, separating couples can now take a much more amicable approach to their divorce or civil dissolution. Through removing the five grounds cited above, parties simply need to confirm that the marriage has irretrievably broken down within the application for divorce.

The change in the system now also allows parties to make joint applications for a divorce to facilitate an amicable separation, as a result whether you live under the same roof or not at the point of separation no longer holds any bearing with the court.

Should you any questions about getting a divorce or the divorce process entails please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

Different countries have different laws and regulations in relation to divorce. This can range from the grounds for divorce (i.e., what you need to prove to the court to be entitled to a divorce) to financial provision made on the divorce. For this reason, it might be advantageous for you to divorce in one country rather than another. Sometimes there are disputes around which country should deal with a divorce as there may be financial implications that one spouse wants to avoid.

If you want to divorce in the UK, you will need to consider your domicile and habitual residence.

Domicile

Domicile basically means the country you have the most ties with. You can only have one domicile at a time. Everyone starts off with a ‘domicile of origin’ which is where their father was domiciled when they were born (if their parents are married) or their mother (if not or if the married father died before their birth).

You can change this is one of two ways, the first being by establishing a domicile of choice. This is achieved by permanently moving to another country and establishing roots there. Exactly what is required is not clear cut so it is important to take expert advice if this might be an issue in your case.

The third route to establishing a domicile is the domicile of dependency. This really only applies to children – their domicile will follow their relevant parent’s domicile. If the child becomes and adult and leaves the country, their domicile will revert back to their domicile of origin until a domicile of choice is established.

Habitual residence

Habitual residence is a lot more fluid than the concept of domicile. It is based on the concept of a ‘centre of interests’. Many things work together in establishing a centre of interests e.g. where someone works, where they own property, where children go to school etc.

What is needed to divorce in England and Wales?

Not everyone can divorce in England and Wales. It can be quite an attractive forum for divorce as our laws may be considered more favourable in certain circumstances that those of another country. To divorce in England and Wales, you must be able to show:

• Both spouses are habitually resident in England and Wales.
• The respondent is habitually resident in England and Wales.
• Both spouses were both last habitually resident in England and Wales and one of them continues to reside there.
• On a joint application, either spouse is habitually resident in England and Wales.
• The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.
• The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.
• Both spouses are domiciled in England and Wales.
• Either spouse is domiciled in England and Wales.

Section 5(2) Domicile and Matrimonial Proceedings Act 1973

This is not always straightforward and if you think that there could be a jurisdictional issue in your case, please contact one of our expert team.

Please be aware that Scotland has a different legal system from England and Wales. If your case is linked to Scotland and you may want to divorce there, you should take specialist advice in that jurisdiction.

Sometimes spouses may separate and lead separate lives for many years without divorcing. Other times, separating spouses are keen to formalise the breakdown of the relationship to be able to move on without worry about any remaining rights/obligations they have towards the other. Even if you are moving ahead with divorce straight away, the process takes a minimum of 26 weeks, and it can be longer than this if you need to work out what happens with your finances or children.

Is it legal?

The question a lot of people are left with is ‘am I in limbo?’. Separating spouses may worry that they are ‘not allowed’ to date whilst they are still legally married to someone else. This is not the case. You absolutely can date when you are going through a divorce.

Is it a good idea?

The question of whether you ‘should’ date is a little different. The fact you are going on dates and putting yourself out there again will not have an impact on the divorce process, but it might impact your financial settlement. One thing that it might do is upset your former partner. If you are trying to come to an agreement about how your assets should be split, your dating life might cause friction and increase any animosity. This is not a particularly ‘legal’ point, but it is something to consider. Further, some divorces are amicable, and your former partner may be pleased to see you moving on or may have moved on themselves.

What if it gets serious?

Dating someone whilst you are going through divorce proceedings becomes more relevant when the relationship becomes more serious. If you decide to live with a new partner, or get engaged to be married, the court can view your relationship as being one with some permanency. This means that, when looking at a financial settlement, your new partner’s assets and income may be taken into account. This is because the court expects that your resources will be pooled if you are living together or considering marriage.

When considering a financial settlement, the court will look at everyone’s needs but also their resources. You will be asked to give the court details of your new partner’s income and assets insofar as you know them though, normally, they are not probed into in as much depth as your own.

If you are living together, the court would think it likely that you would share the burden of the bills. You may be seen to need less income per month because of this. If you have moved into a partner’s house, your housing needs can be considered to be met. Further, you may need less capital for a deposit as your partner will be presumed to be contributing.

If your financial settlement includes you receiving spousal maintenance from your partner, these payments would end on remarriage. It can also be built into any agreement, or decided be the court, that payments should end on cohabitation so the line is not necessarily drawn in the sand after the divorce and financial matters are finalised.

It is a very personal decision as to whether you want to date whilst divorced. It is a bigger decision still to decide whether you are going to move in with a new partner . Bear in mind that, if you give evidence that you have no intentions to move in with, or marry, your new partner but immediately go and do so when your financial matters are settled and your divorce is finalised, your former spouse may be able to set aside the order. If you are moving on with your life, it is best to be up front about it.

If you have any concerns about dating whilst divorcing, please do not hesitate to contact our expert team.

Can I keep my married name, can I change my name after divorce, will I be forced to change my name? These are just a some of the myriad of questions you might have about what happens to your name during the divorce process. Here as some of the things you need to know in a nutshell about your name in divorce and what the rules that govern how you change your name after your divorce or civil partnership.

Can I keep my married name or do I have to go back to my maiden how to name?

The short answer to this question is yes, you have the right to assert which ever name you want to use at any point. If you wish to keep using your maiden name for practical purposes for work, you feel it is part of your identity after being known by that name for years or your wish to continue having the same name as your children, it is your prerogative as to keep using it. Your ex-partner cannot force you to change your surname or make you keep it.

What if I want to revert to my maiden name, can I change it after divorce?

As above, if you would like to start using your maiden name you can simply start using it again. There are however practical considerations that must be taken should you wish to change your name in terms of your day to day living, this can include changing your passport, driving licence and bank accounts. To ease the transition of going back to using your maiden name the most sensible course of action would be to change the name on your passport first as this can then be used as proof of your identity when changing your name with any other organisation. 

For most organisations to change your name after your divorce you will need to present the following documents: – 

• Original or certified copy of Marriage Certificate;
• Original or certified copy of birth certificate; and
• Final Order or Decree Absolute.

If for whatever reason you have misplaced one of the documents detailed above you can request a further copy for a nominal fee of £11 (which will be sent within 4 days) or an express fee of £35 (which will be sent the next working day); you can order the certificate using the following link: – https://www.gov.uk/order-copy-birth-death-marriage-certificate 

Can I change my name during my divorce? 

The short answer again is yes, you can change your name during the divorce process. Should you wish to change your name legally at any point you can enrol for a Deed of Name, this can be undertaken at any point and is not contingent on you getting a divorce; you can find further information on this process using the following link: – https://www.gov.uk/change-name-deed-poll 

If you seek to change your name during your divorce, and have done via Deed Poll it is imperative that you advise all parties to your divorce, particularly your lawyers so they can notify the court of your intentions. Failure to do so may place your divorce in jeopardy, as your Conditional Order/ Final Order will have likely been granted under your old name and therefore to a person who legally no longer exists. Such a scenario could prove a costly mistake and will add unnecessary heart ache and delay.

As you can see there are common pitfalls that people often fall foul of during the divorce process, should you any questions about getting a divorce or the divorce process entails please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

Absolutely. In short, you can change your divorce solicitor at any stage throughout the process – divorce suit, financial remedy, or child arrangements.

At McAlister Family Law, although you will have a solicitor appointed to overlook the work on your case, we very much work as part of a team, and it is therefore equally important that you not only have a good relationship with the solicitor with conduct of your matter(s), but also the wider team including paralegals, legal assistants, and any other person that may assist you with your matter. It is important that you feel supported, and guided, by your team given that family law matters are not only complex, but they are also extremely emotional in nature. Each family law matter is completely unique and therefore you will likely want a solicitor who fits your unique situation. That being said, it is possible for the relationship between a solicitor and a client to deteriorate due to the high pressure, and high stress, of family matters.

If at any point you wish to change your solicitor, team, or firm, it is important to highlight this to your current solicitor so that steps can be taken to make the necessary changes for you. If the relationship with your current solicitor has broken down irretrievably, but you still wish to instruct the firm for continuity, then it is usually possible to transfer your matter(s) to another solicitor within the firm. This is usually easier than transferring your matter(s) as your current solicitor will be able to easily bring your ‘new solicitor’ up to speed with your matters and assist you both in ensuring that the transition is as seamless as possible.

If you wish to transfer your matters to a new firm, then this is also fairly straightforward. You do not need to justify why you wish to change firms, but it is important that you communicate your wish to change to your current solicitor as soon as possible so that they do not continue to work on your matters and incur any further legal costs. If your matter is within court proceedings (either Divorce, financial remedy, or child arrangements) your current solicitor will also have to notify the court of the change, via a document signed by you, and signal whether you have instructed a new solicitor or whether you wish to act as a litigant in person. When changing firms, it is also essentially that any outstanding invoices are settled so that your current solicitor can transfer your file to your new solicitor as soon as possible. Solicitors are able to hold property (a file or original documents for example) on ‘lien’ until payment of outstanding invoices have been resolved. Matters around a lien are complex and it is therefore important to discuss any outstanding invoice, or change in representation, with your current solicitor as soon as possible.

Should you wish to change solicitors, at any point, when instructing McAlister Family Law, then it is advisable to have a conversation with your current solicitor.

Parental alienation, unfortunately, and sadly, it is becoming a very common feature in cases. We must start with the basics, there is currently no legal definition of Parental Alienation. However, it can be summarised in situations where parents have separated and one parent whether directly or indirectly displays to a child or children unjustified negativity aimed at the other parent. In such cases the relationship between parent and child can be lost altogether and the courts have been struggling to deal with such cases as quite often the alienation can be subtle, difficult to identify and can take place over several months if not years.

Cafcass, the independent body appointed by the Court defines parental alienation as ‘when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by one parent. The definition has recently received approval from the Court of Appeal in Re S (Parental alienation: Cult) 2020.

How can you identify Parental Alienation?

Sometimes parents cannot identify themselves that they are causing alienation to their child. Emotions run high when trying to negotiate a difficult path of deciding what the arrangements for your child should be when you are separated. Sometimes, our own feelings dictate how we act, what we say and who we say it to. On occasions these actions and words can influence your child without you even knowing it. For children, they will certainly struggle with their parent’s separation and it must be remembered that their world changes significantly and they can feel divided loyalties, upset and confusion and therefore to witness their parents acting and saying things they have not heard before can be hugely damaging to them.

Parental Alienation can be indirect, where your own feelings take over and do not prioritise your child’s welfare. This can take months, even years, for it to be detected and to be acknowledged, by which time the damage to a child can be irreparable.

Parental Alienation can also be direct, which is where a parent deliberately does and says things to alienate the other parent. As a result, the child will start to move away from the other parent, often not wanting to see the other parent and treating the other parent in a similar way to the parent who is inflicting the negative and damaging behaviours.

Parental Alienation is often a combination direct and indirect, but what we do know is this type of behaviour is hugely damaging to a child, both emotionally, psychologically, and even physically on occasion.

This is an evolving and a complex area of law but if you believe that this a feature of your relationship with your child, then the quicker you act, the better outcome for your child. Intervention is key and here are McAlister Family Law we have Lawyers who are highly specialised in this area who will be able to assist you with understanding, compassion and most importantly ensure that you are supported through what can be a long and emotional journey.

A Child Arrangements Order is an order directed by the Court that details the arrangements for a child and is legally binding on the parents. The order decides the following matters:

• Where the child lives.
• When the child spends time with each parent; and
• When and what other types of contact take place.

The order is most commonly issued to the biological parents of a child when parents separate or divorce. However, anyone who has parental responsibility can apply and it does not matter whether they are a biological parent, a stepparent, a guardian or another relative (i.e., grandparents, uncle and/or aunt), if they feel their access to the child is being unfairly restricted.

The first step in applying for a Child Arrangement Order is to attend a Mediation Information Assessment Meeting (MIAM). The parties are required to attend this meeting, during which a qualified mediator will consider whether an agreement on child arrangements might be reached through an alternative dispute resolution process such as mediation. If mediation is not a viable option, the next step is to submit a form to the Court with all relevant details and declaring your intent to seek a Child Arrangement Order. The Court’s priority will always be the child’s welfare. The purpose of the order is to guarantee that arrangements have the child’s best interests in mind, and the Court will always have this as the primary consideration when making its decisions.

The two most common types of Child Arrangement Orders are: contact orders and living with orders. A contact order stipulates the terms on which a non-custodial parent can have contact with a child; and a living with order sets out where the child will live.

There are two further types of Child Arrangement Order: a specific issues order, and a prohibited steps order.

• Specific issues orders determine specific matters relating to the upbringing of a child, such as the sort of education they receive (for example what school they go to, or whether their education is religious).
• A prohibited steps order limits a parent or guardian from taking a specific step, for example, preventing a child being moved out of the country.

The length of time it takes to achieve a final Child Arrangement Order depends on a number of factors, such as the complexity of the case, the amicability of the parents and guardians involved, and whether there are any safeguarding concerns regarding the child or children in question.

If the terms of the order are no longer being met by one party or the other, it is possible to ask the Court to enforce the order. If the Court concludes that an order has been beached, they have the power to issue several different sanctions to the party deemed to have breached the order. The Court might order the parents to attend parting courses, refer them to a mediator; otherwise, they may decide to issue a Contact Enforcement Order or impose a fine or other punishment on the party who breached the initial order. Alternatively, they may decide to reconsider the terms of the order and issue it again with variations. In very serious cases they can include sending a parent to prison for contempt of Court. The Court can also order CAFCASS (the Children and Family Court Advisory and Support Service) to check that all parties comply with any enforcement order issued.

If the Court deems it appropriate it may decide to vary the order. This could include changing the terms of contact between a non-custodial guardian and child or even transferring custody entirely. You can also seek to change a Child Arrangement Order without a breach having occurred. If all parties agree, the order can be amended with the help of a solicitor. However, if one party does not consent to any changes, then a further application to Court will be necessary.

Travelling abroad when you and your children have different surnames can at times prove to be challenging. It has become increasingly difficult to travel abroad as a family in these circumstances in recent times.

Most countries have guidelines when it comes to this type of travel and the majority of them are very strict when it comes to parents travelling with children that do not have the same surname as them. The main reason for this is to prevent child abduction and trafficking. Whilst this is a welcome change which promotes the safety and welfare of children all over the world, it does mean that if you are not fully prepared, a holiday abroad can quickly become more stressful than anticipated.

As the guidelines vary from country to country, it is difficult to predict what documents will need to be produced in order to prove your relationship to your child as a person with parental responsibility. However, it is highly likely that you will undergo additional checks at the immigration border when travelling.

There are some documents that you can bring with you which will reduce the likelihood of you and your family being held up whilst travelling.

For example:

• Your child’s birth or adoption certificate. This can verify that you are in fact the child’s parent as it should state your name and your relation to the child.

• Proof of your change of surname such as your marriage certificate, deed poll or decree absolute which can demonstrate the reason for the difference in surname.

• Written and signed consent from the other parent. Asking the child’s other parent to sign a written form of authority demonstrating their consent to you taking then abroad can be useful. This is because in most circumstances it is illegal to take a child abroad without the consent of every person with parental responsibility of that child.

• Existing Court Order. If your child is subject to an existing Court Order such as a Child Arrangements Order, this is another document which may verify the connection to your child.

It is also likely that your child will be questioned at the immigration border in terms of their relationship to you, if it they are at an appropriate age. It can be useful to prepare your child for the possibility of this happening prior to starting your travel abroad, as otherwise, it may surprise them.

This is however country dependent, so it is always best to check their specific guidelines via the relevant country’s embassy. Airline companies can also be quite useful in terms of providing guidance as to what the requirements will be.

If you have any questions about this issue, or any other family law matter, please contact our specialist children team who would be happy to assist.

Choosing a school for your child can be a difficult task and one of the most important decisions you can make for your child. Education is pivotal to your child’s future and unlocking your child’s potential to progress in the world.

On occasions, when parents separate it can become difficult to communicate, sometimes your views do not align, and it is therefore easy to you lose sight of what is best for your child.

When discussing which school your child should attend, it is for those persons who have parental responsibility for the child, who can make these very important decisions

Parental responsibility is defined in Section.2 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. In simple terms this relates to decision making for the child on a day-to-day basis but also provides any person who has parental responsibility to have a say in the major decisions of a child’s life and choosing a school and how your child is going to be educated falls into this category.

Whilst choosing a school could seem to be a simple decision such as revieing Ofsted reports, comparing one schools’ performance to another, it also can be complicated by where you live, whether your child is going to be privately educated and if so, who is going to pay and therefore communication with all persons who have parental responsibility is key.

Another consideration is exactly who has parental responsibility for your child, who should you be discussing these matters with? The mother automatically has parental responsibility. A father, has parental responsibility if they were at one time married to the mother, who is named on the birth certificate, who has a parental or adoption Order or who has a parental responsibility by agreement or Order of the Court. It is crucial that any person who has parental responsibility is consulted as unilateral decisions should not be made and if they are a Court could reverse those decisions made, upon an application made to the Court.

What happens if there is no agreement?

If agreement cannot be reached, then mediation may assist as this will encourage communication and hopefully lead to a consensus of how schooling will be approached. Ultimately if there remains disagreement then one party would need to issue an application to the Court for a Specific Issue Order. If this occurs then the decision making will fall to the Court after considering various factors, with the paramount consideration being the child’s welfare. Whilst the parent’s views would be listened to, there are other factors which the Court must consider which laid down at Section 1(3) of the Children Act known as the welfare checklist.

These are difficult and sensitive decisions to make, as they relate to your child’s future and here at McAlister Family Law, we will guide you through the process and provide you with correct expert legal advice.

A consistent breach of a Child Arrangements Order can be very upsetting and frustrating for the other parent and cause a lot of uncertainty for the child concerned. When one parent refuses to adhere to the terms of the Order, then the other parent may apply to the Court for enforcement of the existing Order.

Initial Steps

In first instance you should always speak with the other parent directly to carefully address all the issues. This may help break the ice between you and conclude matters without the need of engaging solicitors or the Court. If this approach fails, the next step would be to obtain legal advice and weigh up alternative options.

Your solicitor might propose to write to the other parent to gently remind them of their obligation to comply with the Order and the legal implications if they continue to breach it. All of the above would already be set out under the banner of a “Warning Notice” which is attached to every Child Arrangements Order. The Court tries to promote compliance in this way and lets the parties know of the consequences for failing to do so. If legal correspondence does not achieve the desired effect, then you may need to consider applying to the Court for enforcement.

Enforcement

The Court will determine the nature of the breach and look at the reasons behind the other party’s non-compliance and whether there is a justification behind their conduct. The Court will assess the effect of the breach on the child’s welfare and whether it would be in the child’s best interests for the order to be enforced.

When a Child Arrangements Order is already in place almost anything can amount to a breach including a lateness to the handover or a cancellation of contact due to an illness, a prior work commitment. Whilst a one off incident of this nature is unlikely to be enough for the Court to sanction the other party, a series of minor breaches may have a serious impact on the welfare of the child and should therefore be looked at more closely. It is advisable to keep a record of all the instances to ensure that the Court has a full picture of the impact of the frequency of the said breaches on the child and the other parent.

Enforcement and Sanctions

In deciding whether to enforce the Order, the Court must satisfy itself beyond reasonable doubt that such action is necessary and proportionate to the seriousness and frequency of the party committing the breach. The Court has a range of sanctions available to it. Whilst some parties may be referred to a separated parents information program or mediation to resolve their disputes, others could be ordered to pay a fine, undertake unpaid work or be committed to prison.

If you are considering applying to the Court for enforcement of the existing Child Arrangements Order, we would highly recommend that you seek specialist assistance.

Surrogacy has become more common in the last few years in the UK. It is a situation whereby a woman (the “surrogate”) carries a child for a couple (the “intended parents”). Usually this is because the intended parents cannot carry a child themselves. There are different types of surrogacy depending upon the way in which the embryo is made.

This is a legal arrangement in the UK. However, in order for it to be legal, certain rules must be followed by the people involved i.e. the surrogate and the child’s intended parents. For example, a surrogate must only be paid for their “reasonable expenses” and therefore they must not profit from the arrangement.

The specifics of the surrogacy arrangement are usually recorded within a surrogacy agreement. However, it is important that all parties involved understand that this type of agreement cannot be enforced. This is regardless of whether the surrogate has signed the document or whether the intended parents have paid the surrogate for her reasonable expenses.

Where there is no dispute once the child is born, the intended parents can apply to the Court for a Parental Order. A Parental Order effectively transfers the legal parentage from the surrogate and if applicable, her spouse or civil partner, to the intended parents. The surrogate will need to consent in order for the Parental Order to be made, although, a surrogate can only give her valid consent once 6 weeks following the birth of the child have passed. If the surrogate is married or in a civil partnership, her spouse/civil partner will also need to provide their consent.

The default legal position is that the mother who gave birth to the child is the legal mother of that child. This means that if there is a disagreement as to who should be the child’s legal parents, the surrogate will be considered the legal mother. If the surrogate is married or in a civil partnership, her husband or civil partner will automatically be named the legal father of the child.

In such circumstances, the intended parents may be left with no alternative but to apply to the Court for a Child Arrangements Order. If an application to the Court has to be made, the Court’s paramount consideration will be the child’s welfare. They will also consider what is in the child’s best interests, by virtue of the welfare checklist.

Whilst it is possible for there to be a dispute due to the fact that surrogacy agreements cannot be enforced, in practice, the majority of surrogacy arrangements are reasonably straightforward.

The Law Commission have suggested that the current law on surrogacy requires reform. It is expected that there will be some proposed changes to the law in the near future which will provide intended parents with a new way to becoming the legal parents of their child from birth.

If you would like some further legal advice in relation to this issue, or any other family law matter, please contact our specialist children team who would be happy to assist.

In Children Act Proceedings, each party is usually responsible for their own legal fees.

At McAlister Family Law, we understand that such cases can be overwhelming and difficult to navigate and we will therefore offer you an initial meeting to discuss your case in full and advise you on your options.

Following your initial meeting you will have made a choice as to the funding option that is right for your case. Part of our moving forward plan is to keep a check on costs and ensure that we are all on the same page as to the costs incurred to date. If you are on a full representation package, then we will keep a close eye on the estimate that we have provided.

Disputes in relation to child law can be expensive and if you are on a tight budget or are looking for certainty in relation to how much your case will cost, then you may wish to take advantage of our children disputes fixed fee packages. For example, we offer a Children dispute fixed fee package and also a Parental Responsibility fixed fee package.

Our fixed fee does not cover cases which proceed beyond the first court hearing. If the case does progress beyond this then we will either charge an hourly rate or will discuss an alternative fixed fee arrangement. You may also be interested in using our pay as you go service.

There is a court fee of £232 to issue your C100 form for your Children Act application. There will also be additional mediation costs, a service the court encourages you to engage in before making your application. During the proceedings, depending on the complexity of your case there might be fees to instruct an expert, such as: drug/alcohol testing, psychological assessment or an Independent Social Worker. These will all carry fees and the starting point is that expert fees are divided equally between the parties.

We will keep you regularly updated with regards your costs in your case and so that you can budget for the proceedings. Normally Children Act Proceedings consist of three hearing: a First Hearing Dispute Resolution Appoint (FHDR), a Dispute Resolution Appointment (DRA) and a Final Hearing. However, if your case is complex and Finding of Fact hearing is needed or more evidence/reports are needed then you might have more hearings that the above list and this may involve more work and higher costs.

Child maintenance is a form of child support for the parent that lives with and has the day to day care of the child (‘receiving parent’), paid for by the other parent (‘paying parent’). It is intended to be a contribution towards your child’s living costs. It is an important form of support which tries to ensure that both parents are responsible for the child’s living costs, even if they do not see them regularly or at all.

There is a government service called the Child Maintenance Service (CMS) which helps parents work out, collect and pay out child maintenance. It is very useful in circumstances whereby separated parents cannot agree a sum for child maintenance between themselves. It can however also be used simply to calculate the sum of child maintenance that should be paid.

Child maintenance is usually calculated by the CMS by using the following steps:-

1. Income

The first step is to look at what the paying parent’s gross income is and whether they receive any benefits such as universal credits.

2. Things that affect income

The next step is to look at whether there are certain things that may affect the paying parent’s income, such as other children that the paying parent has to support or pension payments. This may be taken into consideration by the CMS.

3. Child maintenance rates

The CMS will then apply one of four different rates of child maintenance. These depend upon the paying parents gross weekly income.

The rates are as follows:

If the paying parent’s gross weekly income is higher than £3,000, the receiving parent can apply to the Court to make a child maintenance top-up order.

4. Other children

They will then look at how many children the paying parent has to pay child maintenance payments for and how many children live with them.

5. Weekly amount of child maintenance

The weekly child maintenance sum is then calculated on the basis of all of the information above.

6. Shared care

If the child spends time overnight with the paying parent, the child maintenance calculation will be deducted appropriately to reflect the average number of shared care nights a week.

Although child maintenance is calculated as a weekly figure, it can be paid monthly, fortnightly or weekly.

The CMS website has a useful calculator which can be used as a general guide to estimate what you are entitled to or how much you should be paying to the other parent.

https://www.gov.uk/calculate-child-maintenance

If an agreement cannot be reached, a CMS application can be made, in which the CMS will make a formal calculation as to how much child maintenance should be paid.

If you have any questions about this issue, or any other family law matter, please contact our specialist children team who would be happy to assist.

The concept of shared care derives from the Child Arrangements Order which was introduced to bring the legislation in line with the changing attitudes towards parenting post separation.

A Child Arrangements Order sets out with whom and when a child is to live and spend time or otherwise have contact. The old terms of “residence” and “contact” orders were replaced with a “live with order” and “spend time with order” with a view to reducing perception that a parent with a “residence order” was in a superior position to the parent who only had contact with the child.

In practice, a shared care order provides that the child shall “live with” either parent. The division of time however depends on individual circumstances of every family and it does not necessarily mean an exact 50/50 split. It is therefore possible for a Child Arrangements Order to state that the child shall live with both parents and the same time allow for more time with one parent than the other.

Shared care is predominantly concerned with the quality of time as opposed to an equal allocation of time. 50/50 arrangements are very rare as it is difficult to reconcile them in practice for example due to work commitments. Shared care may therefore come in different formats to many parents.

Formats of shared care

One way to arrange an equal division of time is on a week on/week off basis. Such arrangements tend to work best with older children who are more independent and have a better understanding of concept of time. In younger children prolonged periods of separation from one parent may cause upset and distress and this therefore should be approached with care.

The alternative arrangement may provide for split weekdays and weekends between the parents and this typically works amongst separated families who live nearby, follow a similar routine and have an easy access to the school. The frequency of handovers however may come with its own challenges as it tends to break up the child’s routine and lead to a confusion. Furthermore, in cases when parents are not on good terms, the exposure to parental conflict becomes more of a risk to the child’s welfare.

The arrangements most favoured by the Court tend to follow a pattern of alternative weekends from Friday after school until either Sunday evening or Monday morning with some form of additional mid-week contact to bridge the gap inbetween the alternate weekends. Although the division of time is unequal it enables both parents to have a quality time with the child over the entire weekend and the other parent to maintain continuity of care.

Considerations for the court

The arrangements for shared care and the division of time depend on what the Court considers appropriate having regard to the welfare checklist as well as practical aspects like the nature of sleeping arrangements, suitability of accommodation, geographical location of each parent and the distance from the school and the wider family network. Recent case law also suggests that it is no longer a requirement for parents to be on good terms to make shared care a workable arrangement. If this is considered to be in a child’s best interests, then the relationship between the parents should not affect the making of a shared live with order.

Increasingly, Grandparents play greater roles in care of their Grandchildren as hard- pressed parents juggle busy home and work lives which is why understand Grandparents’ rights is more important than ever. Providing unpaid childcare and helping with the school run being just two of the many tasks a Grandparent might undertake.

When a relationship breaks down, the impact on a Grandparent can be much greater than might have been the case, through no fault of their own and a child’s emotional wellbeing can be at risk when losing such close relationships.

Sadly, Grandparents do not have an automatic right to apply to the court to see a grandchild like a parent does in applying to see and spend time with their own child. So, when there are barriers put up in terms of you seeing them, you may wonder where to turn.

It is important to get advice at an early stage to ensure the relationships and existing arrangements are maintained. If a parent is obstructing your relationship with a Grandchild, you may be able to get an order to maintain your contact.

The starting point is to see if the parent(s) will agree to the contact you seek. This might involve a Solicitors letter being sent or a referral to Mediation to see if the issues can be resolved.

It is important to note however that Grandparents do not have automatic legal rights to see their grandchildren like parents do. As such if matters cannot be resolved through correspondence of mediation, a grandparent can apply to the court for permission to apply for a Child Arrangements Order to determine the time you spend with your grandchild(ren).

Whilst you may have to apply for permission (or leave) as a Grandparents to make an application to the court, the , the Family Court would rarely refuse permission providing there is no good welfare reason why it should not, providing you 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 1 year prior to the application being made.

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. McAlister Family Law has helped Grandparents to obtain Child Arrangement Orders which have included overnight contact on a regular basis. Each family is different though and as such no two cases are the same. Just because you may have heard that one Grandparent has obtained a certain order, it does not necessarily follow that you will

There are however steps to consider before making an application to the court such as negotiations through solicitors or attending Mediation to see if a Mediator can help you to resolve matters outside of court. Maintaining good relationships with the other parent goes a long way in avoiding difficulties further down the line.

The McAlister Family Law Children team helps Grandparents to understand their Grandparents’ rights and maintain contact with their grandchildren following divorce, separation or other family estrangement.

The word “custody” is quite an old-fashioned way of looking at what living arrangements work best for your child or children. Whereas legal dramas popularised the idea of “getting custody” of the kids, what happens in reality is somewhat different.

When couples separate, the issue of where the children live is often a thorny issue. Sometimes couples can resolve this between themselves or via mediation/other alternative dispute resolution. But when couples can’t agree, court proceedings are often the last resort.

If you seek for a court to decide that the children live with you, then you can make an application to court for a Child Arrangements Order. The application is asking the court to make a decision – an “order” – on who the children live with and spend time with.

The old notion of custody is now replaced with the idea that children either “live with” a parent or they “spend time with” a parent. Where the children predominantly live with one parent rather than the other, this routine is often called a “live with, spend time with” order; the child lives with one parent and spends time with the other. Alternatively, it may be decided that the children live with both parents where it is clear and evident that the children have two separate homes – this is a “live with, live with” order.

But how do we get to a situation where the court makes this order? The court will list the matter for an initial hearing (First Hearing Dispute Resolution Appointment, or FHDRA) where the court explores what further information it may need. At this hearing, the court will have a letter from Cafcass, who will confirm whether safeguarding checks – checking the police databases – have been completed against the parties and what they consider to be an appropriate next step.

The court will consider what further information it needs to make a decision, then list the matter for either a Final Hearing, or for Direction Resolution Appointment (DRA) if it thinks it will need to consider any further information before making a final decision. Further information can include, for example, GP reports, alcohol/drug testing, psychological assessments or further reports from Cafcass.

The court will almost certainly want to see and hear witness evidence from both parents. They will see the evidence through a witness statement, and hear the evidence through both parents speaking at a final hearing. The court will then make a decision.

In making its decision, the court will give consideration to the Welfare Checklist contained within Section 1(3) of the Children Act 1989. Ultimately, the court will make a decision based on what they believe, having reviewed all the evidence, is in the best interests of the child. It is less about either parent “getting custody” than it is about the court looking at what is in the best interests of the child.

The final order of the court will specify whether the child lives with each parent or whether the child spends time with each parent. In exceptional cases, the court will order that the child neither lives with nor spends time with one of their parents.

When we are talking about “Rights”, we are talking about a variety of topics, including rights to make decisions and rights to contact, often thought of as “custody”.

When considering the rights of parents, the old-world, outdated view was that the Mother would have the role of “primary carer” and that the Father was very much secondary.

This view is now very much replaced with a more 21st century viewpoint. The 21st century recognises that there are many ways in which a family may divide the childcare responsibilities or how they look after the children day to day, and that the concept of the weekend dad, who just turns up after mum has done all the hard work during the week, is increasingly an anachronism. Indeed, the outdated model works on an assumption of a heterosexual relationship – the old-world view did not even consider what to do if a child had two mothers or two fathers.

There is nothing in law to say that a Mother or Father has more or less rights with regards to their child upon separation, or indeed before separation.

Those individuals with parental responsibility have the right to make decisions about their child. The means by which a parent acquires such responsibility is dealt with in other questions, but to summarise generally Mother’s automatically have Parental Responsibility and Father’s acquire it through either being named on the Birth Certificate or being married to the Mother at the time of birth. This includes decisions regarding education, medical issues and foreign holidays, by way of example. 

If a situation arises where only one of the two parents has parental responsibility, then their rights are different at law. Parental responsibility gives a parent more rights regarding a child than a parent without such responsibility, so if you are an unmarried father not on the birth certificate, then you do have fewer rights. You can apply for an order granting parental responsibility, which is covered elsewhere in these questions, but you will need the court’s permission to do so (which should not be a huge hurdle to overcome).

What parents must remember is that the court is less interested in the “equal rights” of a parent and more in what are in the child’s best interests, and actually it can often be more about the rights of the child to having a meaningful relationship with both parents. Flipping the question of whether either parent has a right to see the child around to ask whether the child should have the right to having that meaningful relationship with both parents can be an instructive tool to aid parents when looking at their arrangements post-separation.

If you and your child’s other parent cannot agree on the child arrangements following separation, you might need to apply to the court for a Child Arrangements Order. Such an order can decide:

1. Where your child shall live
2. The time your child spends with each parents
3. The format of contact (face to face, phone calls, letters and card etc)

The first part of the order is the preamble and contains recitals and the second is the formal court order.

A recital records matters of fact that are helpful for the court to have on the face of the order, or agreements that cannot properly be framed as an undertaking or court order.

The order must be complied with. If it is not, you will see the warning notices on the body of the order and the consequences, i.e., you may be made to do unpaid work of pay financial compensation. You may also be held to be in contempt of court and imprisoned or fined, or your assets may be seized.

With that in mind, if you feel that the order is not working, given that you must comply with it, you should not act unilaterally and not comply with it; first you must consult the other party and see if they would consent to making changes. It is not unusual for there to be a provision in the final order for “any other contact that can be agreed”, which means that if you want to make changes between yourselves, by consent, then you can do so without the need to return the matter back to court. If this occurs, it is advisable to write down and agree on the changes you seek to make should this be questioned later on if court proceedings are issued.

Alternatively if the court is going well and you are thinking about applying to vary the order so you have more time with your child, the first step in to consult the other party. If they do not agree, the court would expect the parties to engage in mediation (if appropriate in your case) and see if the matter can be resolved before making an application to the court.

However, there might be situations that prevent you from seeking the agreement from the other parents such as a safeguarding issue that arises meaning you no longer feel the order is in your child’s best interest.

A party can also apply to the court vary the order on a C100 application form, but careful consideration would need to be given to this and you would be advised to obtain legal advice in the first instance. A court would not normally expect a party to return the matter back to court less than 12 months after a final order has been made.

However, if you are finding that an interim order is not working and you need the court to take steps to vary it, you can make an application to vary the order at any stage of the proceedings.

In all applications concerning children, the welfare of a child is the court’s paramount consideration and you must be able to demonstrate to the court why the change that you seek is in the child’s best interest. The court will also need to consider if the proposed change will affect the child and this is a factor you need to bear in mind before making your application.