Date: 4 Mar 2007
Answered by: Kate Covell, Lawyer
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| Q. |
I have 3 children, two boys who will be 13, and 11 in June and a daughter who will be 9 in July. My boys have been living with their Father since January this year. I have applied for a specific issue order to remove my daughter from the jurisdiction and emmigrate to the U.S.A. Will the courts listen to her wishes and feelings given her age? She is adamant that she wants to go and is not concerned about not seeing her brothers, or her father as often as at present. And will the court allow the siblings to be separated by such a distance? I am engaged to marry a U.S citizen and we wish to relocate with my daughter there. At the end of the day, children are resilient, and my daughter has gotten used to the fact of not seeing her brothers everyday and is happy and settled. I believe this would be in her best interests and that she would have a much better lifestyle than we currently have as I am in receipt of benefits and live in rented accomodation, whereas my fiance owns his own mortgage free home and earns in excess of 50,000 GBP per year. My ex husband lives in a 3 bedroom house with his partner, her daughter and son, and our 2 sons. He receives benefits, his partner works shifts. They own 1 standard 5 seater car, and do little in the way of activities. My fiance's Mother lives 5 minutes drive away, and there are 10 parks within the town and a swimming pool, and we could use his motorhome to go into the mountains to fish or hunt and enjoy the scenery, plus visit some of the surrounding states. There will be so much more to see and do and I am praying that I am allowed permission to take my daughter. I have checked out the local school and plan to take my daughter there for a 2 week holiday in a couple of months to look around. Please can you tell me what you think my chances of success are? Naturally I am very anxious about all of this and want so much for it all to be over.
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| A. |
You ought to apply for a Residence Order for your daughter as well as a specific issue order giving you leave to remove her permanently from the jurisdiction. When dealing with the application the Court will do whatever is best for your daughter. If a Cafcass Officer is ordered to prepare a report then he or she will have a duty to speak to your daughter and ascertain her wishes and feelings. As long as you arrange lots of telephone contact between her, her father and siblings and full arrangements have been made for your living and working in America the Cafcass Officer should be able to report accordingly to the Court to enable the Judge to make a decision in your daughter's best interests. |
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Date: 5 Dec 2006
Answered by: Kate Covell, Lawyer
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| Q. |
I am recently divorced my ex wife having left in March 2005 with my two children aged 4 and 9. They left in the middle of the night when I was at work and the children were given no choice in the matter. On a recent visit both children have asked me to see if I can arrange for them to live back at what they consider as home with me. Their mother has told them they cannot even think about coming back until they are 16. The older one holds it against his mother and grandparents for what they did and is desperate to change the residence arrangements. Is there any course I can take to amend the residence order and can it be done by myself thro the courts. The solicitors used during the divorce made things very difficult and prolonged so very reluctant to follow that road.
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| A. |
The first action you should take is to see if your ex wife would agree to a change in residence by speaking to her. If she does not or you feel she would upset the children if you did this, then you can apply to the Court for a Residence Order under s.8 of the Children Act. You do not necessarily need legal representation to do this and you can complete the application form C1 obtained from your local County Court office. The Court will have a duty to look at the circumstances and the welfare checklist, one of which is the wishes and feelings of the children in light of their ages. An officer from CAFCASS may be appointed to prepare a report for the Court.
However, it would be very unusual for a Court to change residence unless there are very good reasons to do so and a child of 9 saying they want to change residence to the other parent may not be the strongest case. It may be more beneficial to find out from the children exactly why they are so unhappy at home and see what you can do to help them. If they tell you things that are happening that may be detrimental to them then you ought to consider making an application to the Court sooner rather than later. If you decide not to do anything now then change your mind later and the situation itself has not changed then you may find it even harder to obtain the required change.
Good Luck |
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Date: 29 Dec 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I was granted a divorce in Oct this year, after a very long wait. Have married my new partner this December. I have a daughter of 8 yrs who sees her father from 10-6pm every saturday and sunday, unless he is working. Her father has taken her to Sth Africa for a 2wk holiday and we have taken her also, for a month.
This time he is taking her to our home country, Australia, for 3wks. He has moved flat, again, and has changed jobs. I am becoming increasingly concerned that he might not bring my daughter back. He was able to obtained right of abode earlier this year and my daughter travels on an Australian passport. I have discussed my concerns with my solicitor who recommends against a residency order as he feels the court will not grant one. However, what would stop my ex doing the same in Australia, preventing me from ever having my daughter back here with me in the UK. I am a UK citizen with dual nationality (Aust).
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| A. |
Under UK law, you both have parental responsibility which means he cannot remove her from the jurisdiction of England and Wales for more than one month at any time. if he refuses to hand her back, you would be able to apply for a Child Abduction order as the child was habitually resident in England at the time of the failure to return. You do not therefore need a residence order as you have the protection of the law in any event. |
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Date: 19 Nov 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hi hope you can answer my Question?!!
My Ex had residence interim with my consent as I was homeless at the time Would I be able to have her back as Im settled now.
my daughter has alarmed me with the care and welfare for her would I be able to hold onto her as I believe she is being abused by him? or would it be Kidnapping?
Carly
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You would have to show the court that you are now in a postition to look after your daughter and further that it would be in your daughters best interests to leave his care to yours.
You cannot hold on to her as he has a residence order. The Police would be able to physically remove the child from you, which would not only cause you distress but would be awful for her.
I suggest you go and see a local family law Solicitor who will be able to advise you on the merits of an application for residence. |
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Date: 10 Nov 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My Story
Imagine the life you’ve got, a partner, kids maybe? You could be well off and not have to worry about where the money is going to come from to pay your bills.
Would you ever imagine how life can be different for other people? because you have a life so perfect. Then picture yourself as someone completely different, where you`re tossing and turning at night, not because you`re worried about where the money is going to come from but whether or not you are going to get hit by the one who says they love you.
You lay there trying to figure out in your mind what did you do to deserve it.
Most things usually spark it off for someone to hit there partner, some they don’t know why they even do it. Something triggers them off.
I know too well how that feels. Being pushed to the floor, onto a bed or sofa, things thrown at me, kicked punched or slapped.
And being a bloke you wonder why it is happening to you.
Do you speak out? Do you tell anyone? How can you because you feel so stupid to be on the receiving end of a woman anger, her temper.
So many people have said to me since I opened up about it. “Why didn`t you hit her back?”
But when you don’t believe in hitting a woman or you feel like most people what you would gain by hitting back but lowering yourself to there level.
An argument over something silly being pushed, to the sofa and to try and let things calm down you leave the room to which a flying object is hurled towards you. And you hurt your arm by breaking its fall.
Things that have been thrown at me over time, books, shopping catalogues, metal cheese grater to name a few.
You try talking to your partner to get them to seek help and they deny there`s nothing wrong because they cant see that there is a problem.
“You think I`m mental don’t you?” comes the reply. But sensitively you try telling them that they need help. But it falls on deaf ears.
Then in time things would improve until the next row. Eventually we had a child in 2001 and things really did settle down for a spell. But as our daughter got a little bit older things seemed to be getting better then we had a son and then things seemed to get worse. My daughter went through a phase of not sleeping properly and my ex lost it one night where she shook my daughter and threw her on our bed because she wouldn’t go to sleep.
Afterwards my ex would go in the next room and cry because of what she did but never did anything about it. It must have made her realise she`s got to do something about it. But no she never did. In the fall of 2003 things had improved. To the point we planned to move away during the early part of 2004.
But she changed again. And yet again she hit ut at me. It sounds silly but at the time I was at my lowest and needed comfort. I found that in someone-else close to my ex. And I left my ex within days.
I was then on anti-depressants which caused me to have panic attacks
By mid February I was foolish to believe my ex would change and we tried sorting things out. She attacked me again only this time it was the worst it had been as I had a panic attack which my ex kept kicking me in the chest while I was on the floor.
I finally got the Police involved but it wasn’t long before my ex convinced me she’d get help and stupid me I fell for it and weeks after she attacked me again only this time with the help of her mum.
I`ve had an uphill struggle not only to see my kids but to take them out on access days. My solicitor is doing his best but there’s only so much he can do.
After that incident in March things improved slightly we was getting on a bit better. We’d still have rows and she’d stop me from seeing my kids.
Then one day she claimed that she had something up her sleeve to stop me from getting the kids.
I finally got rehoused after months of being homeless.
She got me arrested twice for things I didn`t do. The charges were dropped by the CPS as she lied about my whereabouts.
I`d like to know what my chances are for custody.
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| A. |
Obtaining residence for a man is always going to be difficult as they tend not to be the day to day carer of the children when the parties split.
However if you feel, on balance that the children would be better cared for, long term with you and you can show that they would get a better standard of care than they presently enjoy, I could advise you to try.
The downside is that it will cause more friction and it is likely from the evidence that she will try to prevent contact even more and if you lose would probably try to cut you off altogether.
Have a serious talk with your Solicitor. |
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Date: 13 Oct 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am recently divorced, myself and my ex husband have shared custody of our children. He has Monday to Friday morning and I have Friday afternoon to Monday morning. Our children now want to reside with me full time and to see their dad every other weekend. They are 7 & 10. How do I go about arranging for our children to live with me full time.
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| A. |
Anne
If you want to have your children living with you full time, you will need to apply to your local county court for a residence order using Form C1.
If your husband consents then it will be 1 hearing where the order is rubberstamped. If not then the court will ask for statements to be filed and for a Cafcass officer to investigate as to whether it is in the children's best interest to live with you.
We can deal with this for you for £90.00 with our easy to use Children Act Package.
http://www.divorce-online.co.uk/services/legalcentre/childactlp.htm |
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Date: 24 Mar 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
in july 2003 obtain a joint residency order by consent for my daughter aged 8 and son aged 10. i believe i was lucky enough to get this because ex works shift work and i have them on the weeks he works his early shift.
Ex now has new girlfriend on the scene and making life very difficult. The divorce was very acrimonious but things settled down and communication working well. But now the new girlfriends on the scene ex has become abusive again and refuses to communicate. I have suggested that we communicate in writing at present.
I'm frightened that hes going to go for full residency now hes got someone to look after the children in the morning.
my questions are - can i loose my shared residency?
if push come to shove could it be varied, rather than completely lost?
Can he get the order changed in view of the fact that eventually the order was by consent?
Please help. I'm worried sick as it cost me £8k to get the order in the first place and still owe money for this so couldn't afford another lengthy legal battle but i'm so worried that this manipulative woman is going to spoil the agreement we had.
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| A. |
Jackie
It is unlikely the court would wish to upset the arrangements you have in place unless he can show it would be in the best interests of the children to do so. The courts do not like changing arrangements which would mean less time for one parent unless they have to. |
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Date: 21 Jan 2004
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have a daughter of 16yrs who lives with her father in scotland,she has done for the last 13yrs,my ex partner has residency and we have joint parental responsibilityalthough you would never guess this,as over the years he and his wife have made it increasingly difficult for me have any contact with my daughter.Now though they have separated and my daughter as been in touch with me much to my happiness and has been down to visit over this xmas period,she is now living with his father and stepmother as my daughter didnt want to carry on living with his wife also there was an injunction on him stopping him contacting or being near his wife,son and my daughter.
My daughter is desparate to come and live with myself and my family her brothers and sisters.At what age can she leave,my ex is telling her that she can not go anyhere without his consent until she is 18yrs surely there is something i can do.My ex was only given the residency because i aloud him to have it as i was getting over the tragic death of my new partner and was unable to cope at that time
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| A. |
Louise
legally she can come and live with you now if she wants to, however it would be sensible to get her down to you and then apply for an ex parte residence order in your local county court as soon as she arrives. The fact that there is a domestic violence injunction against your ex will persuade the court to make an emergency order.
There will then be a hearing to determine whether a welfare report will be needed, which in view of her age and circumstances is doubtful. I have every confidence you will win this case. |
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Date: 29 May 2003
Answered by: Yasmin Qadir, Lawyer, FILEX
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| Q. |
I have a 3 1/2 year old daughter. A few months ago my now ex-wife tried to remove her from the UK. I succesfully obtained a prohibited steps order to confiscate my daughter passports. The court now hold the passports. I then applied for residence of my daughter. For all of my daughters life I have stayed at home and brought her up whilst my wife went out ot work full time. Since my wife left the matrimonial home a CAFCASS report has been prepared and recommends residence to my ex-wife despite the fact that it was MY application for residence and despite the fact the my ex-wife treid to remove my daughter from the UK. I have proven that the CAFCASS report is litered with factual inaccuracies and bias against myself and my solicitor agrees but says that I cannot query or complain about a CAFCASS report. Therefore, as a compromise I would accept shared residence. However, my solicitor says it is not worth applying for as shared residence is very rarely granted by the court. Is this true? The final residence/contact hearing is on 19th August 2003 and if possible I would like a second opinion from yourselves.
Regards
Phil McGrath
01989 750404
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| A. |
Hi Phil
should you or your solicitor think that ythe CAFCASS officer has been somewhat bias then you should let be known. Your solicitor should have tried to set a hearing down whereby the CAFCASS officer should have given evidence. This may have meant that your solicitor would have had to write a letter to the Legal Services Commission for an extension on the existing Public funding certificate. Nevertheless I do not have all the information before me to be providing you with specific advice. I am only able to advise you generally.
Shared residence is not normally as rare as has been suggested. I suggest your solicitor does attempt to gain shared residence for you. Again I do not have all the facts before me and therefore am unable to advise you. |
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Date: 7 Apr 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Under what circumstances would a father win custody of his children.
My partner is (trying to) go through the divorce process with his wife. They have lived apart since July '02. In october of that year she moved over three hundred miles away taking the children with her. Regular contact has been persued and a financial agreement abided by. However the situation has been made more complicated by the fact the wife was pregnant at the time of separation. Although adultery was not the reason the marriage broke down she is trying to persue this. My query relates to the fact that the children are used as pawns, she wont let him speak to the children if she doesnt feel like it.
In additon the woman has a history of mental problems and has been known to have very emotional outburst resulting in insulting phonecalls to my partners family members.
We both love the children very much and would give anything to have custody. Please advise.
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| A. |
There are many reasons why a father might obtain a residence order in respect of the children. The overiding concern of the courts is that whatever decision is made it is in the best interests of the children in their individual circumstances. If he feels that their long term needs cannot be met to a high standard by his wife and he feels he can meet and surpass their current needs, then he should seriously consider taking legal advice about bringing proceedings for a residence order to the courts.
There will no doubt be many hurdles to overcome and the application is likely to cause more resentment and bitterness from his wife, so he needs to seriously consider what the implications might be if he were to lose the case in terms of future cooperation on visiting the children. |
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Date: 4 Apr 2003
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I got divorced in March and my exwife is getting remarried in August and moving out of the area. We have an existing contact order for children but they are asking to see more of me (aged 7 & 10) but she is refusing to grant them more time. In order that I can see more what are the odds of me seeking to get custody on the grounds that I can move back into the marrital home (no settlement has been done) thus keeping them close to friends, school, doctors etc? It would be far easier on them than moving away.
Thanks.
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You have a very good chance of succeeding if you can show that you can give them as good as or exceed the care they are receiving now and that you will give your ex wife as much if not more contact with the children than they receive with you. |
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Date: 25 Dec 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have a 24 year old daughter who married at 17 and has 2 girls aged 6 and 5. The marriage has been a disaster with much police and hospital intervention, due to the husband's violence. He was convicted of arson on the flat where they were living and they separated about 4 years ago. Two years ago she moved to our town (40 miles from London) and the children are setlted in school and doing well and they have a lovely 2 bedroomed house with garden. Access to the father's mother has been fairly regular with my daughter doing the transport. The husband has never paid maintenance and the CSA have not been able to pin him down despite my daughter providing all necessary details.During the last 2 years my daughter has had 2 criminal convictions; one for four months prison in 1999 and now for 2 years. During this last sentence since August 02, we have had sole care of the girls and have maintained their school and educational commitments and given them the best possible care and taken them to see their mum regularly. She is due home in early May. During this time, we have insisted that if the husband wants to see the girls that he comes up and collects them for the weekend and then brings them back. We have also given him a small bill (£40) for their school uniform - other than that and £50 towards their Xmas, he has given us no money for their maintenance at all.He now is saying that he doesn't want to visit on a regular basis but only when it suits him, that the girls should be living with him, that he won't give any money ever for their upkeep because he doesn't trust us and that our family is dysfunctional.He says that he is just going to come up and take them and we don't know what to do. Our main concern is for the girls and we are desperate to keep them plodding along in a regular happy life up here waiting for their mum to come home and make a good life with them. She has just been home for Xmas and they are very happy and close and I am terrified that we have no legal standing in all this and that their stability in what are very difficult times is being badly threatened by their father. I have to add that when he does see them, it is only to collect them and then drop them at his mother's house in London. He often then does not see them again until it is time to bring them back here again.
What steps can we take from here and what can my daughter do from prison to ensure that the children remain in their current environment?
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| A. |
I think you need to consider applying for a Residence order to protect the children in the interim. This would give you Parental Responsibility for the children and enable you to oppose any changes that the father would wish to make. You will need to instruct a family law solicitor to help you with this. |
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Date: 24 Dec 2002
Answered by: Hilary Bowles, Solicitor, Fullagarbrooks
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| Q. |
I SPLIT UP WITH MY WIFE ON THE 18/11/02. WE HAVE TWIN DAUGHTERS WHO ARE 3. I AGREED TO MOVE OUT OF THE FAMILY HOME. I HAVE SINCE FOUND OUT THAT SHE HAS A NEW PARTNER, AND HE IS NOW LIVING WITH HER. I KNOW THE PERSON SHE IS WITH AND I ALSO KNOW HE IS A VIOLENT PERSON AS WE USED TO DRINK IN THE SAME PUB. I CANT PROOVE IT BUT I THINK HE HAS ALREADY HIT HER AS SHE HAD A NAST CUT ABOVE HER LEFT EYE AND A SWOLLEN NOSE. SHE TOLD ME IT WASNT HIM BUT COULDNT TELL ME HOW IT HAD HAPPENED. I AM WORRIED ABOUT MY CHILDREN BEING AROUND HIM AS HE MIGHT ONEDAY TURN ON THEM. IS THERE ANYWAY I CAN MAKE SURE THEY ARE SAFE? I DONT WANT THEM TO BE PUT IN ANY DANGER. I HAVE TOLD MY WIFE HOW I FEEL , AND SHE SAYS IM MAKING A FUSS OVER NOTHING
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| A. |
You seem to identify that at this stage your do not have much proof. I think you will have to monitor this very worrying situation as best you can. You obviously need to see the children as frequently as possible to be sure that they are well. If they start disclosing disturbing instances, or have injuries for which there are no proper explanations, consider action at that time. The probable action is for you to apply to Court for an order that the children live with you. The Court does not make such orders lightly and you will need some evidence to back up your application. If you are extremely concerned, then you can ask Social Services to investigate. You need to be aware that both courses of action are likely to drive a wedge between yourself and your wife, and this could make contact much more difficult in the future.
I would recommend that you see a solicitor before taking any steps as they will be able to advise you on the strength of the evidence of your case.
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Date: 14 Dec 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Divorce proceeding are in force and I want to move to the USA as soon as possible to be with my new partner. I have 2 children aged 3 and 5, can I legally take them with me and conduct divorce etc.. from the USA. Do I have to get order first? If so can I get the order seperate from the divorce so I can go out there sooner.
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| A. |
Yes it would be advisable to get the Residence proceedings and leave to remove the children from the jurisdiction before you get the Decree Absolute. |
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Date: 28 Nov 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
difficult one here, i have recently split from my husband, we have a 14 year old girl, who is very mature for her age, at the moment she lives with dad, as i have moved my new partner in to our home, she no longer wants to live withher father, but due to the fact that she loves him can not bring herself to tell him. am i correct in saying that the courts would ask her where she wanted to reside anyway, so infact, the decision would still remain on her shoulders.or, can i infact take out a residency order or something, so that it infact looks like i am demanding she lives withme, ty
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it is a difficult time for her I can see. You are correct that if you issue a residence order the court will have to take her views into account as she is of sufficient age. The court will appoint a Court Welfare Officer to prepare a report and in as part of the report he will of course ask her what she wants to do. The court will still look at all the issues such as housing, schools, emotional etc before making a decision. |
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Date: 3 Aug 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband has recently been informed by his ex that she does not need to inform him of where the children live if they have given him their phone number - is this true?
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No if he is a married father she must give him contact details. if she refuses he will have to apply to the court for an order that she discloses her new address. She would have to give a very good reason for it not to be disclosed. |
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Date: 21 May 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been divorced 7 years from my sons father, I am planning to move to France to be with my partner in the next couple of months. My ex is trying to stop me leaving the country with our son. At present he takes him to school every day and has him weekends if my son wants to go which isnt all the time. We have said that we will pay for my son to travel home every weekend to see his father as long as he is met at the airport and returned. My son is 10 and has said he wants to move to France. I recieve no money for the upkeep of my son and the contact my ex and son have has only been this much in the past 3 years, before it was when and if my ex wanted it. There is no judgement over visitation it has always been amicable.
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| A. |
You are only allowed to remove your son from England and Wales for one month without permission of either another person with parental responsibility or the court.
Therefore your only choice is to apply to the court for a residence order for your son in France. I suggest you do this and apply for an interim hearing so the matter can be dealt with quickly. The likelyhood is that there would be agreement at the interim hearing. if not then the judge would no doubt order a report from the court welfare officer in which your son would have his say which would have great weight. |
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Date: 14 May 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Is there such thing as joint resedency for children & what are the financial implications? how long does it take please?
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| A. |
Joint residence or shared residence is becoming more common and means that the child spends a nearly equal amount of time with both parents.
If you are agreed on that then you do not need an order, you can just get on and put the arrangements into effect as the court will not make an order unless it is in the best interests of the child to do so.
If you feel that an order would benefit both the parties and the child by giving the arrangement a legal framework then you should apply to the court for a shared residence order.
Normally neither parent will be required to make child support payments where a shared residence order is in place. |
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Date: 7 May 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I divorced my wife 8 years ago when she abondoned myself and two children who were 11 & 6 mnths old at the time.
She subsequently remarried and maintained access to the boys fortnightly over the weekends as set out by the courts, she has never paid anything to the boys and this has gone on for the past 8 years which has been fine.
Recently she seperated from her husband and since that time has been causing great upheaval within my current family unit,I have since remarried and am very happy, the cause of the upheaval is that my 11 year old has now stated that he wants to go and live with his mother, she has obviously placed this idea within his head and he seems quite ademant with regards to this which is the cause of the upheaval, At present my ex wife lives with her parenets and the boys sleep in a bunk bed with her when they are there.
Can I stop access to her on the grounds of the sleeping arrangements and also at the same time get her to stop filling the boys head with destructive ideas?.
At the moment she is only showing an interest in my eldest son and appears not to be interested in my younger son,Is there anything that I can do to stop her from splitting my family up?
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| A. |
If she wants to have the 11 year old come to live with you then she will have to apply for a residence order for him with all that entails. She will have to prove to a court that it is in your sons best interests for him to live with her, taking into account her circumstances, housing and ability to care for him. His views will be given some wieght becuase of his age but this will not be the dominant factor in the case. The separation of the children will probably be the deciding factor in my view and it would be very difficult for her to say that it would be in the children's best interests to split them up.
As for her behaviour at present, it may be a good idea to formally threaten to withdraw contact if she continues to cause problems. |
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Date: 30 Apr 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have been separated for 6 months and have an amicable arrangement, free from any legal ties, with my wife regarding access for the children and financial arrangements. I am very close to the children and for the last 4 months, since moving in with my partner I have had a lot of access. They come for They stay with me 1 night a week, have dinner and bath another night and I have them all weekend. Contact with the children, given her work arrangements is nearly on a par with that of my wife's. The children are settled where they live now, in a nice area and though only 3 and 4, have many friends and relative's in the area who dote on both them and my wife. My wife is now proposing to move back to her childhood home in Hampshire, 300 miles away, to be closer to her parents and sister, though she has lived away from them for 13 years. This is a move that I believe is not in the best interests of the children (housing is extremely expensive, she has no job there and frankly, her parents are not the most doting in the world) and will be seriously detrimental to the relationship I have with the children. Is there anything I can do to prevent the move? The children have themselves said they wouldn't want to go (but they are young). Regrettably, the separation is due to my affair with my current partner and I have to accept culpability for that, but the children are very happy, comfortable and secure within the current arrangements.
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| A. |
Your only option is to apply to the court for a residence order so that the children remain living with you with contact to your wife. You have a good argument that uptil now you have had effectivley shared residence of the children and to move them to Hampshire would not be in their best long term interests.
Once the application has been made a Court Welfare Officer would no doubt be appointed to look at the matter and come to a conclusion as to the best options for the future.
We can assist you with this application using our recently launched Children Act legalPac.
For more information goto: http://www.divorce-online.co.uk/legalcentre.asp. |
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Date: 24 Apr 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner and i are at the beginning of the divorce process, I have left the home due to my wifes behaviour, and now live seperately. We have 3 children. My wife has taken a lover, part of the reasons for divorce, and i concerned about him. I have tried to find out about him and have spoken to him directly, he has admitted to me that he has come from a violent, the violnce coming from his father, background and my wife has told me he is withdrawn and underconfident. He is 22 years of age and has never been employed and is living at home. I am concerned about this character being near my children. Am I being paranoid or is my concern justified. If so what course of action can i take.
Thank you
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| A. |
As a parent you are obviously within your rights to be concerned about what people have contact with your children.
It would seem that your wife has not really taken into account his possible lack of maturity and the fact he has never worked into account as far as the children are concerned and what effect this may have on them.
If you believe that they would be better looked after by you then you can apply for a residence order to ensure the children live with you and have contact with their mother but precluding her lover if you are worried.
The court would investigate the matter thoroughly but the downside of doing this is you may find your wife becoming very bitter and using the children against you in the future.
I would advise seeing a specialist family law solicitor.
If you are unable to afford a Solicitor then you can undertake the proceedings yourself with our help and guidance using the newly launched Children Act pac which will guide you through the procedures involved. |
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Date: 24 Mar 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have recently separated from my husband of 8 years, which entailed leaving the UK where we had lived. We both agreed it would be best for me to return to my family has I had not been working and had no prospects. Our daughter is two years old and we had agreed that it was right that she remain with me. We agreed on just about everything, arranging for my husband to visit her in the US and planning for me to come back to the UK to visit my husband and his extended family. We split our finances neatly and all seemed well. The night before my departure, my husband confessed to an affair which I had long suspected but had no proof. While I would love to reduce the amount of time I have to see him, I will not for my daughter's sake. My concern is that he will renege on our agreement and when he comes here will try to take her away. I don't know him to be particularly spiteful but my trust in him is gone. He has been trying to get a UK passport for her (she was born in the US and has a US passport) which I told him I would rather he didn't. I realise he has parental rights and that I can't prevent him from taking her out when he visits but I want to know he can't now go back on our agreement. We did not write it down but it was planned well in advance, he helped me pack and signed off on the move etc. I applied for the separation agreement but I don't know how much cooperation I can expect from him. I want to know how I can protect our agreement for me to have custody and specifically for me to have custody in the US. I will cooperate in trying to promote contact between them but I do not want my right to custody to be threatened. What can I do should he decide to go back on our verbal agreement?
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| A. |
My advice would be to obtain a custody order in your local court as there are rules that would mean if he did decide to take her, the British courts would have no option but to return her to you under the International Convention on Child Abduction. |
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Date: 18 Feb 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife and I separated in Jan 2001 and her solicitors have just written to me expressing her desire to initiate divorce proceedings against me. The grounds of the divorce would be adultery as I have since formed a relationship with another woman. I am currently living with my new partner in France and have found a new flat and job. In the solicitor's letter there is an enclosed draft confession which I am encouraged to sign, with the recommendation that if I co-operate my wife, or rather the state because she is on legal aid, will bear the cost.
I am eager for a quick divorce but rather concerned about the implications for access to my children. I left the family home, car, furniture etc behind because I did not want to make things difficult for my two young children. The house is solely in her name, I was a student when we started the mortgage, so I don't believe I would have any claim anyway. Unfortunately I took out a personal loan in my name when I was teaching full-time. Consequently, I've been left with a big debt.
My wife, and her solcitor, admit that the marriage had been in difficulty for some time before my infidelity. My wife made life unbearable for me by effectively moving her mother into the marital home. I was forced out of the conjugal bed when my wife refused to put our son in a cot and my humiliation was complete when she purchased a sofa bed for me and insisted that I sleep in the living room.
I have had my children during holidays, the longest period being four nights. My wife will not let me exceed this. She claims that she wants a divorce without discussion of access, assets etc. I'm not sure what implications a confession of this type would have on the final outcome. I've thought of counter-petitioning on the grounds of unreasonable behaviour but I don't have any money to employ a costly solicitor. Can anyone offer any advice?
Cheers,
Nick
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| A. |
The confession statement will have no effect on your financial matters or indeed your access to the children as the facts of the divorce are not relevant in the other proceedings unless they were claiming that you were an unfit father or some financial conduct.
If you are unhappy with the access arranegements you can say so when you get the Petition and return your acknowlegment. This will make the court list an appointment to deal with the question of contact. You would then be able to take it from there. |
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Date: 7 Jan 2002
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
On 23rd October 2001 my wife admitted to an adulterous relationship, the man is in another relationship of 15 years.
She left the matrimonial home on 24th October returning five days later but asked me to leave to give her a 'little space' I did but she asked me to come home after just 3 days. when I went home she left with our two children and went to stay at her mothers for 3 weeks before agrreing to come home to me with the children and attend marriage guidance.
She cam home but informed me that she would not give up the other man or attempt a reconciliation with me.
Now she wants me to move out again or she will leave with our two children 6 & 8 both girls.
We only adopted these children in July 99 and although they are now stable after a very difficult start in life ( we were there 4th home) her plans to move them again will undoubetdely de-stablislise them. I want to continue the continuity for them and and to continue to provide a stable home and base.
my wife has never spent the night -with this man, he was her F.E. lecturer at college and has the same name as her recently deceased brother and reminds her of her dead father, I should add that when she met him she was suffering with depression and taking anti-depressants.
My children have never ever met this man, who has an unstable background.
Q. If I believe that my wife is going to take the children out of their home, can I apply for a residence order to stop this or a type of 'special order' to prevent her from doing so - bearing in mind she does not yet know were they will live which could involve several moves for the children.
I am a caring daddy who takes the children to school every day, does all the cooking and shopping, makes their lunches for school, plays with them and helps with homework etc....
Although full time employed, I work for the Catholic Church and my working arrangments are totally flexible.
Hope you are able to reply
Many Thanks.
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| A. |
If you are serious about caring for your children and believe that she will take them shortly, you need to apply for an Interim Residence Order on short notice. The court will on most occassions keep the status quo until reports have been dealt with and evidence heard, which would mean your children staying in the matrimonial home.
You will need a Solicitor for this in my opinion. |
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Date: 24 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My daughter is separated from her husband of six years. there are three children, a daughter aged just 5 and twin boys 3.5 yrs. My daughter issued an injunction against her husband for non-molestation asd he had been harassing her and pushing her about and she had become completely terrified. This case has subsequently been linked to an interim residency order as her husband has filed for residency. My daughter works 4.5 days per week and the children, when not in school, go to a childminder and have done so since the twins were 7months old. Her husband has said the children should live with him because his parents would take early retirement and look after the children when he was at work. My daughter is obviously terrified of losing her children, does he have much of a chance of getting residency. Note he is currently on Prozac and beta blockers for depression and anxiety and, we feel, is unstable. The children are happy at home with their mother and do have access visits to their grandparents where their father now resides.
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| A. |
On the facts you have given, it would be very hard for the court to award a residence order to your Husband or her parents. The Children are well cared for and the fact your daughter works will not in my view be an overriding consideration. The fact that there has been domestic violence has to be taken into account by the court and I therefore think it unlikely he will win. |
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Date: 2 Oct 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My Girlfriend has been separated from her husband for 5 years. She has a 5 year old daughter. The father has never tried to contact the child. My girlfriend is about to file for divorce and we are concerned that the father will try to gain custody of the child. What is the liklehood that the court will grant him custody of the child?
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| A. |
You have absolutely nothing to worry about. On the facts you give, he would not have a chance in hell of getting a Residence Order.
He may however be able to obtain a Contact Order, but also due to the length of time he would have a hard time. |
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Date: 24 Sep 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My partner has two children, aged 14 and 17. They both live with his wife, but they have a joint custody order. What would the process be if the children wished to live with us, and we wanted this to happen. How would we go about this?
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| A. |
Your husband would have to apply to the court for what is now known as a Residence Order, which simply says where the children will live on a full time basis. The other parent is usually granted a contact order, which is the modern term for access rights.
You can apply for a Residence order at your local county court on form C1. The court fee is £80.00.
The court will set a hearing date for both parents to attend and talk to a Court Welfare Officer, to see what the issues are and whether agreement can be reached.
If not, a Welfare report may be ordered and the children will be asked what their wishes are, as they are of an age where the court can take their wishes into account. |
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Date: 30 May 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My husband of 7 years walked out on me and my sons 20 months ago. I went straight to a lawyer to get a legal seperation and to get full custody of my sons. Just recently i've been asked if I still want a Residence Order. I would like to know what this entails. I feel I need every back up possible to keep my sons with me as I don't trust their father. he has moved back down England with his family and has started a new life with someone else. I fear that one day he will come up for his sons and not return them. I'm divorcing him on the grounds of his unreasonable behaviour.
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| A. |
A residence order is an order that says where the Children shall live on a day to day basis and means that no-one can remove the children from you without your consent.
Also it stops a parent from taking the children out of the UK for more than one month, without a court order or permission of the parent with the residence order. |
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Date: 18 Mar 2001
Answered by: Simone Katzenberg, Solicitor
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| Q. |
I am currently going through a divorce which is proving very problematic and lengthy. My husband is at present serving a two year prison sentence. We have a five year old child together and due to the physical and emotional abuse from my husband. I am thinking about moving to Australia before his release or as soon as I receive my decree nisi. Could you please advise me on the legality of taking my child out of the country. Can I do this without his consent ?
There are no orders from the courts and we have made no case concerning my son`s residence status.
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| A. |
You cannot simply take your child out of the country on a permament basis without either your husband's consent or an order of court. If your husband doesn't consent, you must issue an application to court asking for leave to remove the child permanently from the jurisdiction. This takes time. The sooner you start the process the better. Good luck |
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Date: 26 Feb 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
My wife was having affairs and our marriage was in dire straights,we were self employed in business together and I felt that our lifestyle was to stressful and causing problems with the marriage.An opportunity came up to work in Southern Ireland, I suggested it as away to save the marriage.My wife agreed and suggested that I go ahead,see how the job worked out, find out about about schools etc, if ok she would follow with our two girls (7&3)in a few months.It did work out for me with the job and for her with another man while I was away. So now we have been divorced a year and I decided to stay in Ireland as my career potential is far greater here. I love my girls dearly but would have to start from scratch back in England and this way I can pay child support. I travel back every 4 to 6 weeks and have them for weekends and occasional weeks. The problem is that she has refused to allow them to visit me in Ireland.I need staying contact(as do they)in Ireland so that we can have as normal as possible a relationship.In the end I applied for a Defined contact Order for them to visit me regularly in Ireland and was successful.They have their first visit in May.By the way, the journey is not an issue, they are well travelled and it is the equivalent to them travelling to Devon if I lived there.The problem that I do need answering though is that she now wants a Residence Order because they will be leaving the jurisdiction. I have no problem if it makes her feel more secure about their return but I do wonder if it may create any problems for me having contact with them in future.I really just want the girls and myself to have as much contact as possible given the circumstances(of course I will also still see them in England as much as I can). Would I be putting my head in a noose if I agree to the Residence Order or is it merely security for my ex.
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| A. |
A residence order merely states where the child shall live on a permanent basis and does not override a contact order in any way.
It also stops you from keeping the children once they are in Ireland under the Hague Convention for Child Abduction. That is why she is requesting the order, I would suspect.
You will not be putting your head in a noose by agreeing the residence order, which would be granted in any event if you contested an application, on the facts you have presented.
I do not think you have anything to worry about! |
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Date: 23 Feb 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
Can anyone explain to me concisely (a) the particular different rights which are conferred on a parent who has shared residence for 140 nights per year compared with a similar parent who ony has contact for an identical time - with the former spouse having sole residence?
Also can anyone suggest to me what the factors are that a judge should take into account when deciding whether it is apropriate that a parent should have a share of residence? In particular are persistant and deliberate past failures by the resident parent to comply with court orders relevant? Parental Alienation?
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| A. |
Both parents have parental responsibility whether they have contact or residence.
There is very little difference on a practical basis, although many parents would argue that a shared residence order puts each parent on an equal footing.
If you have a residence order you are able to take the child out of the jurisdiction for periods of up to one month without the consent of the other party or the court. Whereas with a contact order the consent of the other party or the court is required.
Financially the person with the residence order will receive the child benefit and will be treated as the person with care for the purposes of the Child Support Act.
The issue of shared residence is always difficult. The Judge will take account of the factors in the welfare checklist, as set out in the Children Act 1989. However paramount consideration is always given to the welfare of the child.
On a practical day to day level, shared residence orders will generally only be successful if the parents are able to communicate and work together in the best interests of their child/children.
Persistent past failures to comply with court orders would not on the face of it be a good reason to grant a shared residence order. However, if there are continually failures to comply with court orders, the court could always be asked to consider granting residence to the other party. The court would have to be convinced that this was in the best interest of the child/children and that the other party would comply with court orders.
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Date: 14 Feb 2001
Answered by: Tracy McCormack, Solicitor
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| Q. |
My wife left me 10 months back. We agreed informally at the time that we would both provide residency for our two children - hence they stay with me 3 days a week. My son is actually keen to stay longer, but that's not possible because I work. My daughter, however, is approaching puberty and is naturally keen to be closer to Mum (she was always closer anyway). Result is that in recent weeks she's been missing the odd day with me. The other day my ex told me that my daughter would prefer it if she could stay with me only 3 days a fortnight. I didn't offer any resistance except to ask my daughter if it was really what she wanted, telling her I love her, and adding that I hope this arrangement isn't indefinite. Privately I am greatly saddened and fear it may be the beginning of 'losing her': she may want to see me even less, and my son might want to follow suit.
Has anyone any experience of what to do in a situation like this? I want to manage it sensibly, as in the end I want a continuing, loving relationship with both my children for life
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| A. |
Firstly may I offer my congratulations on how you have handled the situation to date.
The best thing you can do is to reassure both your children that you and your ex love them, and that you both want them to be happy and enjoy being with both of you, even if you are not together.
It is also important that you and your ex continue to communicate and present the children with a united front.
In my experience if you can continue to deal with the situation as you seem to have been, then both you and your ex will be doing all that you can to bring your children up with love and security. |
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Date: 9 Jan 2001
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am currently getting divorced from my French husband through a French court. I am English and we were married in the UK in July 1999.
We are going ahead with what is termed a divorce by mutual consent in France and have drawn up an agreement via our French lawyers, ruling on finance, custody, residence of our son etc.
Our 3-year-old son is resides with me (it has been stated in the agreement that his habitual residence is in the UK with his mother). My soon-to-be ex-husband has free access to our son although he cannot see him as often as he wishes due to the fact he lives in France.
He has asked me to include a paragraph in our agreement (which is currently being approved by the family judge in Paris) about the possibility of shared custody/residence (not sure which is the correct term?) i.e. if ever he came to live in the UK and resided near to my home, he would like to have the possibility of having our son to live with him 50% of the time.
I am not particularly adverse to this as long as it doesn't seem to have a negative effect on our son, but would like to know if there is any legal provision for such a concept in the UK.
Sorry to be so long winded and thanks for pointing me in the right direction.
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Shared residence orders used to be frowned upon but recent rulings by the President of the Family Division gave precedent to the fact that they would be more common and in the best interests of the children. Also the English Court would respect the order of the French Court so far as it was not incompatible with the Children Act 1989 which governs Children's law in England & Wales.
If there were a dispute in the future the Court would apply the Children Act and if it were deemed not to be in the Childs best interests for a shared residence order then the French Order would be overturned.
If the child continued to reside in England & Wales the court here would have ultimate jurisdiction for the making of any orders.
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Date: 6 Dec 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I am a house-husband of 2 young girls aged 3 and 7, I am after residence. My estranged wife is squeezing me dry, she has cut all my income off. I was on income support and had the child benefit paid to me. My wife has managed to get the benefits cancelled and the child benefit is under investigation, which could take 3 months to sort out. My solicitor was going to issue a maintenance order against my wife for leaving me with no income. My wife then decided she would give me £50 a week; she earns £40k plus bonuses. When she was due to give me the first £50 cheque she changed her mind and only gave me £25 a week. My solicitor said she could not justify going to court for maintenance at this stage through legal aid. My wife continues to pay for the food and bills in the house; we are at present still under the same roof.
ok my question is;
we have a joint account that i have found out about, where my wife does not know about. It is in her name, i am a 2nd card holder. If i would take money out of this account, would it hurt me in my case for residence for the children. Also My left me with a credit bill of £560 which i had to clear up, the account was in my name with my wife as the 2nd card holder. there is a high credit limit on this account. I also can not work at the moment as being the full time carer of the children, my solicitor has told me not to work, because this would take my time awawy from the kids.
the final hearing is in march 2001.
my bills are standing to add up and i still haven`t done any xmas shopping. please advise.
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| A. |
How can taking money from a joint account hurt you when you are only trying to provide for your children?. Clearly if you do take money then bear in mind it can be taken into account when the bigger picture of finances are dealt with later.
You do not say whether there are divorce proceedings or not. Within the divorce proceedings it may be worth you pursuing maintenance pending suit application. Speak to your solicitor about this as she knows more about your case and clearly obviously has a duty to the Legal Aid Board about funding.
Bear in mind that it could be possible for you to claim costs against your wife in a Court application particularly if you can show that she has been unreasonable.
Finally in respect of the Credit Card make sure that she is unable to use this as ultimately from the Company's point of view you will be responsible for the bill.
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Date: 26 Oct 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Please could you tell me at what age can children decide to live with their father when a court will take notice of their wishes. Also would the fact that their birth mother has had another child to their step-father go against their decision to live with their natural father. Could you also please tell me whether children can apply for legal aid in such matters? Thanks
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| A. |
One of the Court's criteria when looking at what is in the best interests of the children is their ascertainable wishes.
The age at which they are considered mature varies because children mature at different ages, but as a rough guide I would say 10-12 years of age.
A court welfare officer would report on a case like this and their views on the maturity and understanding of the child would be the guide for the Judge.
Children can apply for legal aid in certain circumstances where they wish to be made a party to the proceedings but this is very rare. They are kept out of the adult processes as much as possible with the court relying on reports from experts such as the Court Welfare Officer or Psychologists or Family Consultation services.
The fact she has had a child by another man would be taken into account as to whether it would damage their relationships with each other and their half sibling. However it would only be one of the factors. |
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Date: 11 Oct 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
After 8.5 years of marriage, in August 1998 I decided to
separate from my husband as I felt we both wanted different
things from life and I was very unhappy. There were no
other people involved, no cruelty, no unreasonable behaviour etc.
However, we do have an 8 year old daughter and had already
decided to employ an au pair to care for her when my
husband and I were both at work. Once the au pair had
settled in, I left home (in Reading) to live in London in
October 1998. This seemed sensible at the time as my
husband continued to work shifts in Reading and it was
easier for me to get to work in London. For a year and
a half this situation continued, with me working and living
in London in the week while my husband cared for our daughter
and then I would return every weekend to care for her while my
husband did his own thing. In all this time I continued to pay
half of all bills and mortgage. By the end of 1999, my husband
decided he could not keep up with his half of the payments
and consequently we agreed to sell the house, split the profits
and enrole our daughter in boarding school. All this has
been amicable although my husband was less happy about
sending her to school and has continued to feel guilty.
We sold our house in March 2000, our daughter started
school in April 2000, we split the profits 50/50 and have
both invested an equal amout of this into a trust fund
for our daughter.
My husband has now been seeing another woman for the
last 6 months which makes me very happy for him. My
daughter has met her once and I believe that in the not
too distant future, my husband will move in with his new
girlfriend.
I have now received a letter from my husbands solicitor,
issuing divorce proceedings on the grounds or desertion.
I was under the impression that after a two year separation
no reason was needed. Having spoken to my husband
about the letter, I think he has had the "desertion" part
included "in case I meet someone, leave the country and
try to take my daughter with me against his wishes". I am
not seeing anyone and think he is just trying to cover any
potential situation.
As we have sorted all our finances out amicably ourselves
can we use your online process to legally divorce and
then have a seperate agreement drawn up by a solicitor
that says we both agree to leave our daughter in full time
private boarding education until she is 18 and that we
both agree to continue paying 50/50 for this? Effectively,
we have equal care for our daughter. (In the holidays she
spends time with both my husband and I but her home
residence is officially her grand parents i.e. my parents
home.)
If we can do this, what do you think the cost would be to
have a solicitor draw up an agreement of this type?
Thanks in advance for your help.
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| A. |
I do think that desertion was the wrong ground to start a divorce on the facts you have given me.
You agreed to separate and therefore the fact of the divorce will have to be 2 year separation by consent and can be issued by either party.
If the divorce has not been issued, you can of course use our legalpac to undertake the divorce itself, yourself, dispensing with the Solicitor for this part of the process.
I would also advise that you do not get a separation deed drawn up but have an order drafted when you obtain decree nisi that will finalise the divorce.
A Consent order as it is called should cost no more than £150.00 to be drawn up if everything is in agreement.
Our Panel Solicitors Bower & Bailey would be happy to quote on 01793 610466 ask for Katie Went
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Date: 10 Oct 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I am the divorced father of a six year-old girl.
My wife has a history of depression and mental illness and we have an arrangement that she spends half the time with each of us.
Lately however my daughter has been reluctant to go with her mum and we have had a number of very distressing episodes where she simply refuses to go with her mum.
Last week my ex-wife’s' doctor contacted me to ask if I would look after our daughter full time for a while as her mum was not very well, (no details I’m afraid), and I have since found out she is under a consultant at the local psychiatric hospital again.
Since I am all too aware of the deep dark cloud that seems to descend over people with mental illness, I am very eager to sort out the situation for my daughter’s sake.
My question therefore is at what age will the courts take her own view-point into account, I know she is only six but she constantly expresses her wish to stay with me full-time, and by literally forcing her at times to go and stay with her mother I feel I am letting her down badly. I am beside myself with worry. Please help!
Thank you in advance.
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| A. |
You are in a very difficult situation. Emotionally you could more damage to your wife by bringing proceedings which could make things worse at home for your daughter.
However you have your daughter's best interests at heart and if you cannot obtain full time residence by consent, then you will have to make an application, and I would suggest you do this immediately on an interim basis pending a full hearing of the matter and reports to safeguard your daughter.
The court will appoint a Welfare officer and will want a physciatric report as well.
You will need to employ the services of a specialist family solicitor and probably a barrister in due course, as I suspect a case of this sort will go to a full hearing. |
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Date: 9 Oct 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Hi and thank you to Katie Went for answering my last question. This time i would like to know if there is anything in the Human Rights Act that i can use to better my position on gaining residency of my children, i am now aware that my soon to be ex wants to sell our property and possibly move from the area therefore taking the children to another school etc. i on the other hand want to maintain the house for the children i know that it will not be easy for a few years but i know that i can manage it. Any pointers would be greatly appreciated and thank you in advance.. Steve
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| A. |
I don't think that the Human Rights Act is really going to have an impact upon your case. There are aspects of it that will obviously be considered by the Judge, such as a right to a fair trial, right to family life etc, but I do not think that there are any particular facets of the Act which apply specifically to your case.
Moving away from the area is a factor the Judge will have to consider when deciding the outcome of the case but only inasmuch as he would whether the Human Rights Act was in force or not.
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Date: 9 Oct 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I left my wife 04/99 as she was an alcoholic. I felt comfortable about leaving the kids because my wife's mother lives almost across the back garden and her sister lives at the bottom of the street. I told the kids (14 & 11 at the time) to contact their grandma if there was any problems. There were problems with my wife's behaviour in 07/99 and again in 09/99 when even her mother couldn't handle her behaviour and I had to step in to look after the children. Dispite frequent requests my wife would not move out of the house to allow me to return and look after the kids properly. In 10/99 matters came to a head and the social services took the kids away from their mum and placed them in my care. I had to place them at my sisters temporarily as I was living in a small caravan with no room for them and no where near their school. In late 10/99 I took my wife to court and had her excluded from the house to allow me and the kids to return - I also was granted interim residences for them. The kids are still in my care and my wife will not grant me permanent residence, in fact we are due in court in 12/00 for a proof hearing to fight it out. By then the kids will have been with me, in their own home, for nearly 15 months and will be by then 16 & 13. I have had full approval for my care of the kids from social services and the kids are happy with the current arrangements and behaving like normal settled kids - good reports from school (passed all exams) etc.
My question is, how strong is the tendancy of the courts to assume that kids are better with their mum. Surely if the kids are settled and see their mum regularly (as often as they want as she stays with her mother across the back garden) then why take a chance my wife will go back on the booze and the kids will be put at risk again.
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| A. |
The Court considers each case upon the facts alone and not necessarily on the basis of whether children are better off with their mothers or not. In your favour is the status quo. I think that on the face of the facts you have a good chance of the children remaining with you particularly if Social Services support your case. You do not say whether they have filed a report in the case, perhaps under section 37 report?. If it is their intention to issue care proceedings if the children are returned to their mother then it is highly unlikely that the Court are going to make an order in her favour, especially as she appears to have extensive contact.
Also to bear in mind is of course the children's view. If they are saying that they wish to remain with you as life is more settled then the Court would consider this factor.
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Date: 7 Oct 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
We have my step-children aged 8 and 9 this wekend and my step-daughter has been assaulted yet again by her mother.She was assaulted approx 18months ago by her step-father and police and social services were involved. We issued residency proceedings and after running up a bill of several thousand pounds reluctantly backed out and settled for defined contact, the main reason for that being that the social worker involved advised us they were being very co-operative with social services. The police are actually coming out to our home tomorrow to interview the children and if they think there is a case they will contact they emergency social worker for this area presumably to issue an initerim care order. Both children suffer a lot of mental abuse at home as well as physical. What would our chances of being successful in a residence application in view of rexcent events. Both children's teachers say they seem happy at school and their mother helps out a lot in school. Any advice would be greatly appreciated.
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| A. |
I really cannot say but I think that you are going to need to have the Police and Social Services on your side quite heavily as the children's mother is going to allege that you allowed her to care for them once so what is different now?
Social Services are not going to be happy to issue care proceedings unless they absolutely have to. They will try and persuade you to issue residence proceedings which they will 'support'. Try and get them to issue with placement to you and within the care proceedings make it known that you will apply for residence and have that considered within the care. If you have to issue Social Services may move into the background and not be as helpful as they could be if they were the Applicants.
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Date: 5 Oct 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I divorced in 1992, I have three children ages 19, 17 & 13. No court orders exist, maintenance and contact were done via a consent order. Since my divorce the children have lived exclusively with their mother in England and I have only seen them on one occasion. My wife and I have applied for immigration to Canada. Medicals for the children were requested by the immigration office but were refused to be taken by the children. Our immigration lawyer (Canadian based)now tells us that unless they take the medicals we need to show a court order showing that the mother has full custody. Obviously there isnt one. Can I obtain the court order? Please advise.
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| A. |
This is a tricky one.
Technically your ex wife needs to apply for a Residence Order as she is the one claiming the Order. However if she will not apply, you should apply for a Residence Order on the basis that when the 1st directions hearing is listed you agree that the Order should be in her favour.
This may sound cockeyed but it has been used many times. |
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Date: 1 Oct 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My Wife is having an affair which is why I am divorcing her she has no interest in any reconciliation. My concern is that she is spending more time with her new man than with the children. I want residency of the kids (5 + 6 Girls) and would like to know what my chances are. I do the most for them and always have; such as I cook all the meals and get them ready for school etc. I am also sure that I will be able to maintain their home better than their mother i.e. with regards to paying the mortgage/bills There is also about £12000 of debt in my name that has been run up for the household and other h.p debt for white goods etc and her car who would end up paying for this?
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| A. |
I would advise you to seek advice from a solicitor.
Residence of the children is a difficult area. It would seem likely to assume that your wife is not going to agree that the girls reside with you and therefore you will have to apply to the Court for an order under the Children Act 1989. This can be protracted, costly and can cause conflict all round.
It may be that you can settle the matter at mediation and that is something a solicitor can advise you on.
The web site will have information on the Court procedure and what it taken into account by the Judge when considering disputes. I cannot say what chance you have as each case is considered on its own merits, but if you feel that the children would be better off with you for reasons which are in their interests, rather than your own, then you should apply. By this I don't mean to be rude, but some clients do only wish to apply for residence because they do not want to the other party to have the children not because it is the best for them.
With regard to finances I cannot give advice on the likely settlement but if there are debts and the monies were used for joint matrimonial matters then your wife will be jointly responsible for them. However if there are only debts in the marriage and no assets and the debts are in your sole name then the Court cannot force a third party to be responsible.
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Date: 28 Sep 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I've been helping a friend through a messy separation and now probable divorce and this question is on her behalf. They have two children aged 3 and 4 who now have residency with their father. My friend has gone through a long depressive illness which ended in 2 suicide attempts, 15 thousand pounds worth of individual debt and separation. She is now coming out of the illness only to find herself without her family, job, money or home despite 9 years of emotional, practical and some financial investment. Her husband now has little sympathy and says his only concern is with the children. He promised to help her financially and emotionally once she granted him residency but now seems to be reneging on the promise which never took legal form. The family house is owned by his father and has been kept out of the equation. My friend fears losing legal aid if she begins to work again. Given that he is divorcing her on grounds of unreasonable behaviour does he have to pay for her lawyer if she defends the divorce? Is she still eligible for legal aid if she begins work to pay off her debts? She is currently on incapacity benefit and applying for housing benefit but in desperate straits. She sees the children 3/4 times a week but has nowhere to take them and no money to feed/entertain them. It seems bizarre that she could be sent away from 9 years of marriage with only the clothes in her suitcase but because she has given up residency for the sake of continuity for the children this seems to be the case. Please help.
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| A. |
I am sorry to hear your friend is at such a low point in her life.
She really needs to get legal help from a good family solicitor straight away.
Even if she starts work straight away,her legal aid will probably not be affected, considering the level of personal debt she has. She may have to pay a monthly contibution, but I very much doubt it.
She also needs help with her debts and I would ask her to give our Debt Counsellor a telephone call to discuss her problems. He often does not charge, and when he does it is only a small amount. His name is Richard Cowen and he can be contacted on 01793 514055 . |
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Date: 25 Sep 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My partner and I were together since 1997, we never got married as originally I was going through a divorce. This was final in August 99. We decided in late 98 that we would have a child. My daughter was born Oct 99. We got engaged in Sept 99. However in Dec 99 it became apparent that she had been having an affair with a married man at her work since Autumn 98. (I have no doubt as to the paternity of my daughter). In Jan 00 she moved out and set up home with her new partner, who left his wife and children. They have recently bought a new home together, his divorce is not on track as yet. My partner originally stated that she did not want me to be left out of my daughter's life and financially they were better off together than we were so she was not after a large contribution. We originally worked out a rota of care for my daughter that equated to me having sole care 10 to 12 days & nights in 28. In the last few weeks she has became very awkward and now refuses to allow me to have my daughter in the week, only every other w/e. I would ideally like to have sole custody but I appreciate that this is very hard. I now feel that she is trying to force me out of the equation in order to have a happy home with her new partner. She has agreed to sign a PR agreement in principle. My questions are this, a) do I have any chance of full custody, I work in a very secure job with a decent wage, I own my own home, with no unsociable habits. My new partner, is totally supportive of my plight (she was not involved in any way before the split) My ex partner and her partner are also in good jobs, although he is a director were she works so if they split this would prove difficult. They both smoke. Other than this they are average people.
b)does my ex partner have any call on my home or property, I remortgaged solely in my name in Aug 99 when I got divorced, all of my leagl affairs were completed then, putting every thing from my marriage into my sole name.
c)if I can not get full custody what are the chances of a 50 50 shared custody?
thank you in anticipation.
Karl
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| A. |
a. I cannot say whether you would win a residence dispute or not. Under the Children Act the Court's paramount consideration is the welfare of your daughter. Factors they would take into consideration are detailed on the web site. However bear in mind that if your ex has been the primary carer and that has been the status quo it is likely that the Court will not wish to overturn the existing arrangement. There would have to be very good reasons for them to do so.
b. On the property matter it is difficult to advise. There is legislation around which would enable your ex to make a claim on your property. Whether this claim would be successful would centre around your intentions and discussions and how you lived when you were together from 1997. You do not say where you lived then. If it was in rented accommodation or in her house, and then you purchased a house in your sole name just before you split up then it is not likely that she would have a claim. However if you are concerned about this then I would advise you to talk to a solicitor. Bear in mind that if your ex was considering a claim you would have probably heard about it by now.
c. Shared residence orders are rare. They are not normally recommended by the Court Welfare Officer, (an independent person who prepares reports for the Court in Children Act disputes) as they will only work by agreement. Shared residence usually exists by agreement between the parents and in those cases there is no need for an order because they can agree. You will therefore see why it is difficult for the Curt to order them as one party usually wants the child full time with contact to the other and therefore will not co-operate. In addition they do not normally work when the child gets older as there can difficulties with schooling particularly if the parents do not live close to each other.
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Date: 23 Sep 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My sister lives in Hong Kong with a 17 month old son and is pregnant again. Her husband has announced he wants rid of her as he is having an affair. Can he stop his son leaving Hong Kong via a court order? My sister was due to leave tonight but has realised that this would leave her without a home, income etc and he would be getting everything. She wants to stay put for another week at least to get her affairs in order before coming back to the UK to be with her family on a temporary basis. Please advise. Should she come home straight away and seek legal advice here or stay put and how would this affect her position if he then decided to use his son (whom he has said he does not want) as a bargaining pawn?
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| A. |
Your sister can return to the UK with her son as long as there is not a Court order in existence preventing this.
Her Husband can make an application known as a Prohibited Steps Order. This application is made under the Children Act legislation.
I cannot advise her as to whether leaving or staying will have a better or worse impact of her finances. All I can say is that the Court will not allow children to be used as pawns in financial proceedings. Children matters and finances are considered separately from each other.
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Date: 21 Sep 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Last thursday and Friday I attended a full hearing for residency and contact with regards to my 11 year old.
At the time I had residency of her as her mother had no longer wanted her.
Mum changed her mind my daughter wanted to live with mum. Although not happy with that I accepted my daughters wishes.
Prior to this my contact with her was each alternate weekend one night a week holidays etc.
After my ex was awarded residency she said via her barrister that contact should only take place once a mnonth for 6 hours with no staying contact. This was based on the CWO report where he had stated that my daughter did not want any contact with me.
I had argued that the CWO had got it wrong but he made a joke of it said he should resign if he got things wrong, judged grinned etc.
I eventually got two saturdays a month for 6 hours, two phone calls and one letter.
I returned home that night and explained this to my daughter who then burst into tears and said I told mum that I wanted everything back the same as before.
I have had to represent myself due to lack of money. I feel like giving up on everything and have been in a state of shock all week. I cant give up though for my daughters sake so I need to know what steps I can take now.
I know you are probably thinking that the cWO was right and my daughter said wg=hat she did just to keep me happy. I can ensure you that is not so, so please any advice would be most appriciated.
As the judge said the best place for any child is with her mother, dosent my daughter have any rights in respect of her father?
Thank you
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| A. |
I am nor clear as to the facts. When did you last have residency, was it prior to the hearing and then you agreed your daughter could be returned or did your ex have her anyway?
In any event your recourse is to reapply to the Court.You cannot appeal the decision as it would appear that you agreed to it by consent and even if you had not and the order was made you can only appeal if the Judge erred in making his or her decision. If they followed the Court Welfare Officers recommendations then this may be difficult to establish.
However the Court are not in all likelihood going to consider your application favourably and it is likely that your ex will argue that you are making frivolous applications if you reapply.
I realise that you feel that you have to represent your daughter's wishes but I would consider very carefully whether further Court proceedings are in her interests. Perhaps leave matters as they are for about 6 months and think about it then. Remember the older your daughter gets the more likely she is to vote with her feet and express her own wishes.
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Date: 11 Sep 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Hi,
I am currently involved in a residency case with my soon to be ex. In may she no longer wanted my 11 year old daughter living with her. She now lives with me, but my ex now wants her back. I am due to go to court on thursday for a full two days hearing. I have been trawling the net looking for some case laws in respect of this but I cant find any. Can you point me in the right direction or even provide me with some case laws. Thank you.
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| A. |
It would be extremely difficult to provide you with any case law at this stage of proceedings without having conducted the case from the outset.
The case will depend on what the Court Welfare Officer has said in their report.
The court will be unlikely to change the residence position as it is now unless it would be in the children's best interests to do so.
All we can say is good luck. |
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Date: 1 Sep 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I am a house-husband, I have been looking after my 2 young girls since thier births full time for the last 7 years, their ages are 2 1/2 & 7.my wife has decided to divorce me, but she wants residence over my children and the house we live in. she is working full time on a salary of £39k, plus bonus will take it up to £46k.my wife wants to employ a child minder to look after the children. i am on incme support and recieve child benefit. my wife claims I have not got a chance because I am a man and we have two young girls. i want to continue to look after my 2 girls and stay in the house we currently live in. the house is valued at £170k our morgtate is £74k. what are my chances and do i have a chance in staying in our current home.
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| A. |
Two issues for you to consider; Financial matters and Residence of the Children.
Children
It is not true to say that only women win residence applications. The reason why case law supports them is often because they have been the primary carer of the child. In your case this applies to you. If your wife is working and would be employing a child minder to care for them then if you are still prepared to stay at home, (as you agreed would be best as a married couple), then it is likely that you could have a chance of succeeding on a Court application.
When considering Children Act matters the Court have to apply the 'Welfare Checklist'. Check out the website for more information on this area. However the welfare of the child is of paramount importance, not what you and wife want on a personal level.
Finances
I need more information on the finances before I can advise. However one of the factors the Court will consider is where the children are to live.
I would advise you to seek legal advice as you would be entitled to legal help and assistance for general advice and legal aid for any Court applications on a means basis in any event as you are on income support.
On specific points, debts which are in your sole name cannot be pursued against your wife. However other assets of the marriage can be applied against them to pay them off, in this case the proceeds of the joint account, which will be taken into account in the whole scheme of things.
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Date: 29 Aug 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
I have grandson for whom we have joint residence order with my wife. Five years ago I gave her full and irrevocable permission to make any decisions for him without consulting me. Is this child treated as the child of the family? What Court will be concern of in this matter? Should I mention him as the child of the Family? Tony England
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| A. |
Yes he is a child of the family and you will need to complete a statement of arrangements for children when issuing your divorce petition.
Your local county court will deal with the divorce proceedings. |
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Date: 10 Aug 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
my solicitor has told me, that witnesses are not worth having. i am a father of 2 young girls after residence and the house. i am a house husband and have been looking after my children since their birth.My solicitor has also said using family as witnesses is not usefeul, i also know that my wife has witnesses. what do you think?
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| A. |
Personal witnesses who are friends or relatives unfortunately will be somewhat bias and the court has to be careful not to add too much weight to these type of witnesses. If however a neighbour or someone you do not have a personal relationship with, has something to say, this will have more weight as will an independent professional such as your GP, Health Visitor or Social worker. Also if the children are members of any clubs or out of school activities, the organisers should present an independent source of evidence as to the childrens' behaviour since the split.
A school report could be commissioned to ask how they feel the children have coped whilst with you, if they are of school age.
If the court has appointed a Welfare Officer to prepare a report, they will have hopefully spoken to these types of witnesses and the court will have regard to what the report says than to any individual statement.
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Date: 8 Aug 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
would I be permitted to move away with my children if I got divorced. Can I forfeit maintenance payments in lieu of access?
also, my father-in-law is leaving my husband a substantial property in his will, would this be taken into account when splitting our assets?
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If there is no residence order in force then you can take the children to live abroad. However bear in mind that it would be open to your Husband to apply to the Court to prevent such an event taking place. This application is called a 'prohibited steps order' and this is made under the Children Act legislation.
The issue of maintenance and contact is entirely separate. Even if your husband paid no maintenance he would still be entitled to see the children. The Court considers these to be separate issues and in any event the Court has no jurisdiction to deal with child maintenance expect in exceptional circumstances.
I think it would be your duty to give your husband notice of any impending move as it is in the children's interest to maintain a relationship with their father.
When considering financial assets one of the factors the Court can take into account is an expected inheritance. However this must be anticipated within a reasonable time of the settlement being made. It cannot just be considered if the parents are quite young and your husband is going to benefit from their estate as an only child.
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Date: 18 Jul 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
What are my chances of winning custody for my 3 year old girl? I love her very much. My wife left us for someone else two years ago. The child has been under my care since the day she left. She did come round to see her and take her out. Now she wants to fight with me over custody. I badly need to win custody over my child. I have been through hell. The womens rights movement in my country is very strong. How do I fight the case to win? I do not want my child to be with her and with another man. I dont want to end up helpless. What is the best way to win the case?
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| A. |
It sounds as if you are not resident in the UK and it is therefore difficult to answer your question.
In the UK, The Children Act of 1989 states that it is what is in the best interests of the child that matters and if that means living with a father rather than a mother then that is what is ordered.
If your child has lived with you for 2 years as you say then I find it very hard to believe that a Court would transfer Custody to her unless your care was seen to be inferior to the care your wife could provide.
Most countries have an independent court welfare officer who will prepare a report in cases where the welfare of the child needs to be considered. This person effectively guides the court as to any final decision.
You may have friends or relatives that would vouch for you? Or even better your doctor, social worker, health visitor or church official.
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Date: 18 Jul 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
Has a UK father ever gained residency of his daughter due to moral neglect by the mother? I am talking about a sequence of overt sexual relationships she had with men known to the 5-7 year old daughter, to be married to other people, in one case the father of one of her friends.
Is there any expert evidence with regard to long-term effect of mothers as role models on young girls? If so where can I get hold of it and who are the leaders as expert witnesses in this field?
Has refusal to vaccinate a child ever been used/approved as a valid reason to transfer residency from one partner to another?
Tony Dawson
Starting case off as litigant in person tomorrow and rather nervous to say the least.
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| A. |
Your case does not seem to be a straightforward residence dispute on the grounds of physical ability to care. That is not to say that the Court in these cases does not consider moral issues quite often.
I cannot give you supporting case law, which exactly applies to your case, however the issues you have raised are ones which would necessitate the involvement of a Court Welfare Officer. This independent person appointed by the Court will investigate the concerns that you have to the full extent.
You seem to think that because you are the father that you are unlikely to succeed. Do not be despondent. Fathers do win residence disputes in some cases. Remember that each case is dealt with on its own merits and facts and no two cases are the same.
Acting as a litigant in person will not disadvantage you. In my experience the Court (in my locality in any event) are quite helpful to those who do not have the benefit of legal representation
So far as experts are concerned. It is difficult for me to give information on this, as I am not sure of where you live. Clearly it would not be cost effective for you to instruct an expert who lives 200 miles away. Bear in mind that to instruct renowned experts you need to have deep pockets and also leave of the Court before doing so. You may find some assistance in this area from the Court as to local experts used in Public Law Proceedings.
Good Luck
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Date: 18 Jul 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
My husband and I seperated nearly 4 years ago after being married for 18 months. We tried to get back together, after being out of touch for a year, but in April this year after 2 years trying decided it wasn't going to work. I want to get divorced using your pack, but there are some issues to be resolved.
Access. He now has our children once a month. This is something we agreed on when he was working weekends, while we were trying to get back together. Now we have decided it's over, he wants them more often. What is the normal frequency? Our eldest daughter (14) only wants to go because she feels she needs to look after our 2 other children aged 4 and 5 when they go. She wouldn't go otherwise. Would the courts say he can have more access? He wants them when it suits him, and also dictates what hour of the evening he'll bring them back, even though it's somethimes way past their normal bedtime.
Finances. He signed the house over to me last year. I paid the deposit, and he contributed to the mortgage for the 18 months we lived together, so we have no assets to split. I have some shares. Could he make a claim on them or my pension? I have not received any child maintenance this year because he says he cannot afford it. The last I knew he earned slightly more than me, but his outgoings are high. Would the CSA award me anything if I make a claim. He has 3 older children, 2 over 18, and 1 who's 16 from a previous marriage. They live abroad. As far as I know he has not got any more children.
My legal standing. I am in the process of moving home. Do I have to get permission from him? I understand if I wanted to go abroad for more than 4 weeks that I have to get his permission. I plan to go on holiday for 5 weeks over Christmas. Do I have to get his permission to take the children out of the country?
If these issues are resolved, is it wise to go ahead and get divorced using one of your packs? Is it best to get a solictor? I cannot afford one as I have the sole responsibility of looking after 3 children, but I want to get divorced. Is there anything else I should take into consideration?
Thanks for your time.
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| A. |
Dealing with the children first.
There is no normal contact routine as each case is different, however he should not be dictating when he sees the children. Routines should be firmly set around the children and not the parents.
A common routine would be for Dad to see the children every other weekend, with maybe an overnight in the week or an evening. Then perhaps half the holidays and alternate Christmas days.
Your eldest daughter is of an age where she can make her own mind up and the courts would respect her wishes.
As far as the finances are concerned you would be wise to obtain a consent order setting out the agreed settlement and dismissing all other claims between you so no further claims can be made by either of you. This will involve a Solicitor, but if it is agreed should cost very little.
You can use our service for the divorce as long as you let any Solicitor have copies of the documents as you process them and as the Court issues orders.
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Date: 18 Jul 2000
Answered by: Mark Keenan, Editor, Divorce-Online
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| Q. |
Need urgent advice - I'm a single dad of 2 kids, 12 & 14 (lived with me last 10 yrs). On a recent visit to their mother's, she failed to return my daughter home, saying she 'didnt want' to come home - have some legal questions to ask.
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| A. |
If you have a Residence Order or old style custody order you can apply to the court for it to be enforced. However if your daughter is mature for her age the court would take her views into account.
If she has stayed on a whim this would need to be looked into.
It would be advisable to see a Solicitor immediately so they can ascertain the situation and advise you accordingly.
If court proceedings are necessary you may be eligible for for Legal Representation (legal aid).
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Date: 18 Jul 2000
Answered by: Katie Went, Solicitor, Bower & Bailey
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| Q. |
I'm contemplating divorce on grounds of unreasonable behaviour. Our relationship has broken down due to the intereference from husband's mum whom we live with. My husband has promised many times that we will move out but it still hasn't happened. Married for 5 yrs. Have 18 month old. Since baby, have not worked, don't intend to. My q's are to do with custody and finances. Financially we do not have many assets but we have cash in sole and joint accounts. How will this be affected.
Custody.
I am primary carer, in that I do all for baby. Husband only picks up baby to play with him when it suits him. He works f/time. Would I be awarded custody, considering he wouldn't know where to begin to look after baby and that he works f/time.
Finances
The house we live in was paid for with cash (no mortgage) a few months after our marriage. It is in my husband's mum's sole name even though my husband paid £30k towards it. She lives in the house also. If we divorce I would have to leave the matrimonial home. What claim if any would I have to the house. Before the baby I worked f/time and my wages went into our joint acc from which bills for home etc paid. Husband's mum does not pay towards any bills whatsoever. If I left I would in the first instance live with my parents who would support me and the baby if need be.
Thankyou for your help.
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| A. |
Divorce
You can petition on the basis of your Husband's unreasonable behaviour. The particulars you allege could be considered weak depending upon other aspects which you have not described.
Contact/Residence
The Court will not intervene in respect of the children unless a formal application is put before them. Unless your Husband is contesting residence then the children will reside with you, (if that is what is agreed). If he is alleging that he wishes the children to live with him then the Court will have to decide the issue of residence and probably contact to the absent parent. If you have been the primary carer for the child then it is unlikely that he will succeed in an application for residence, particularly as he works.
Bear in mind however that contact should be promoted between him and the child unless there is serious reason why it should not take place. It is far better for you and your husband to try to come to mutually convenient arrangements than to have the matter resolved by the Court
Finances
This is a difficult issue as from what you describe the primary asset of the marriage is tied up in your mother in law's house, with no formal agreement between she and your Husband. If you have evidence of this money then you will be able to make a claim against him share of the property but it could prove difficult and protracted if they try to allege that the money was a gift etc.
You have a short marriage but clearly you are unable to work at the present time due to the fact that you are caring for a child so this will be taken into account. The bank accounts should be frozen until all financial matters are resolved.
In view of the facts described I would advise you to see a solicitor immediately. You may be eligible for legal help/legal aid.
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