Do the Beckhams and Rooneys prove you should stay in a marriage and work at it?

With the press full of stories about the Beckhams and Rooneys and their historical marriage woes, McAlister Family Law Partner, Lisa Brown, raises the question of whether it is the right thing to stay in a marriage when it is floundering or not?

Both the Beckhams and the Rooneys appear to have navigated troubled waters and arguably come out stronger but that is not always the case and there is no one right answer as to how hard is too hard when it comes to fighting for a relationship.

If I start divorce proceedings is there no way back?

From a legal perspective should you decide to start divorce proceedings there is still a way back until the final divorce order as you can effectively ask the court to cancel the proceedings. It is rare that this happens as for lots of people the process of separating their finances and resolving issues in relation to the children can polarise them further. Having said that there are couples who go through the entire process only to get re-married again!

Does it matter if I am the one who ends it?

Sometimes the making of the initial decision can be the hardest part and it can also colour how the parties deal with the practical elements of separation. For example, where it was more one person’s desire than the others, they can feel guilty and end up walking away with less than they deserve.

The process of divorce and all that comes with it is inevitably driven by emotions, but parties do need to understand that with the financial settlement they only get one chance to get it right and if they agree something which is overly generous or, conversely, which doesn’t meet their needs they may end up regretting it.

From a legal point of view, it will not have any impact who ends the relationship nor whose fault it is. Part of the reasoning behind that is that if some account was taken of who left who and the circumstances of that in determining either financial or child arrangement issues then the courts would be full of people arguing about whose fault the demise of the relationship actually was. Relationships are complex and this would lead to greater uncertainty and cost in litigation.

So, what should I do?

There is perhaps a reluctance to speak to a divorce lawyer when a relationship may be struggling- almost as if in doing so you are accepting the relationship is over. Like most things in life though it is far better to be aware of what might happen than end up potentially going into the situation blind.

Added to that there are many different myths about family law which are frequently repeated, but wholly inaccurate and inevitably most people will know somebody who has had a “bad” divorce with it being long fought, expensive, acrimonious or all of those things. This can inadvertently impact your view and cause unnecessary stress and worry.

Speaking to somebody who can guide you through the legal process could help crystallise your decision one way or another. A divorce/ family solicitor shouldn’t be pushing you into a divorce but instead should set out the various legal options and processes to allow you to make an informed decision. Advice given is always completely confidential.

If you are in a relationship that is struggling at present my advice would be to speak to one of our specialist family solicitors so you can make a decision about your future with all of the facts.

If you or someone you know is affected by the issues raised in this blog post, we can provide you with expert legal advice. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk

We cannot agree on counselling for our child – What will the court decide?

According to statistics, nearly one in 10 children and young people are affected by a mental health problem. The good news is that there is now more awareness of this issue and a number of resources available to children and young people who may be suffering. Here, Melissa Jones looks at what the court can decide if parents cannot agree on counselling for their child?

Understandably, separation and divorce can be a difficult and anxious time for children. They might feel confused and believe they need to “pick sides”. They might also believe that the separation of their parents is “their fault” and might be feeling guilty.

Where does this leave you?

Decisions on a child attending counselling would fall under the umbrella of medical decisions. If you both agree, then great, they would attend counselling. If only one parent agrees, this does not necessarily mean that the counselling should go ahead and with such important decisions is not advisable to act unilaterally. This issue should be agreed upon by all of those with parental responsibility for the child(ren).

What is Parental Responsibility?

Under section 3 (1) of the Children Act 1989 “parental responsibility” means 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.

What application do I need to make?

In the absence consent from all those who hold parental responsibility, a parent may wish to apply to the court for a Specific Issue Order, for the court’s permission to enable them to make decisions about the child in the absence of the other parent’s consent.

The application that would need to be made comes under Section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education and medical matters. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, prior to making an application, the court would encourage the parties to engage in Alternative Dispute Resolution, to see if matters can be resolved. It may be that if you have spoken to a medical professional or a GP who highly recommends that the child or children attend counselling then you may be better assisted in your discussions with the other parent or in any application to the court.

Most importantly it would be best to understand why the other parent objects to the child(ren) attending counselling. Perhaps they need more information first or would like to speak to the counsellor themselves either on their own or jointly with you.

What will the court decide?

If matters relating to a child’s medical care are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. Arguably attending Counselling for the child might be in the child’s best interest and a vital resource to help them deal with their mental health issues. Conversely, it might not be necessary for the child to attend counselling and it may be considered intrusive and invasive given their age, characteristics and understanding. It is of course a balancing act.

Can I not just take them to counselling anyway?

However, if one parent has taken matters in their own hands and begins the process of making medical decisions without the other parents’ consent, that would not be perceived well by the court. In fact, if you choose to ignore the other parent’s views or objections, then they in turn could make an application to the family court to prevent you from making the child(ren) available for counselling. This also comes under Section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the child(ren) from attending counselling.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

Resource: https://www.counselling-directory.org.uk/young-people-stats.html#riskfactors