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Divorce and Family Law in the UK (myths & truth)

When it comes to divorce and separation it seems that everyone is ‘well informed’ about what their rights are in this area and the rights of all other parties involved.

There are always friends, family members, a neighbor or colleague that comes with helpful advice, whether it be about how much money you are entitled to when you get divorced, which parent gets custody of the children or how much money absent parents are supposed to pay for child maintenance.

The truth is that family law is very complicated and this matter requires legal advice from an expert and professional lawyer. You won’t be able to get satisfactory results without a trained and professional lawyer at your side.

Not all cases of divorce are the same, therefore it is important that a family law expert should be called in to evaluate the specific circumstance of your current situation, give practical legal advice and come up with the best approach for your case.

Common Law

The phrase common law is what many people refer to when they are talking about unmarried couples. This misconception is that if two people are living together for a certain period of time, they are common law husband and wife and therefore have claims on each other’s possessions. I can guarantee you this is not the case.

Only when you are legally married to your partner or you enter a civil partnership with the same sex, then the union has legal implications automatically.

There is one exception to this rule. If you and your partner are living together you can draw up an agreement stating what each of you have in your possession and then arrange how things will be divided between the two of you if you should go your separate ways. This is extremely important and there are many couples that find that it is best to deal with these issues up front in their relationship. This agreement can include aspects like who are the owner of which items, financial claims and parental responsibilities if there are children involved.

Who gets custody?

In legal terms custody or access to children does no longer exist. The court is no longer allowed to grant custody to one or the other parent. So if any one recommends that a parent (mainly the father) will not get custody of the children should he get a divorce does not have their facts straight.

The court only has the power to determine certain decisions that will affect the children, for instance, with which parent will the children live, how often the absent parent gets to spend time with the children and so forth.

The court only gets to make these decisions if couples cannot come to an agreement between themselves. To determine where the children should stay the court grants a residence order. In very rare cases the court will make an order in the favor of all parties involved and allow the children to spend equal time with both parents.

The court also has what we call a contact order. This determines visits, phone calls, weekends and holiday visitation for the absent parent. This can be arranged by a family attorney, but couples should be encouraged to agree on these issues on their own between themselves as these orders may be incredibly hard to enforce.

Maintenance myth

Since the Child Support Agency (CSA) was introduced in the early 1990s, it has become a legal fact that the courts have no power to deal with maintenance for children. The court is only entitled to make maintenance orders in very rare cases for children. This include special cases where both parents apply to the court for an order by consent, in cases where the child are disabled and it involves care cost and cases where children receives full time education and it involves cost like school fees.

So if you are in a situation where you are being threatened about going to court for maintenance, you can rest assure this is only cheap talk. You can then recommend that the treating party seek the advice of professional, experienced family law solicitors.

It is the duty of the CSA to deal with the payments in order to help support the children. The CSA will assess your case based on the information given by the parent and will follow up in the case of a default.

Attorneys may also advice you in such circumstances and gives advice on whether you should apply for maintenance to the court, or leave the situation to the CSA. You should seek this expert advice in the early stages of divorce, so that you will be able to make the right choices for your children.

Fathers’ Rights

There is one other common myth which states that a father has rights to their children. It’s true that married and unmarried fathers of all children that were born after the 1 December 2003, have rights to their children provided that their details are on the children’s birth certificates.

But other fathers, including step-parents are not automatically entitled to rights. Any of our clients, whether a step-parent or unmarried father has the right to apply for parental responsibility. This will allow these fathers to make certain legal decisions on their own, without having to get any consent of the other parent/partner, for example in cases of a medical emergency.

These myths listed in this article are just a few of the most common myths that we hear about, of course there are many more out there that holds no resemblance when it comes to the current family law.

Some of these myths may have been true at one time, but a long time ago. Other myths were never true to begin with. The reality is that some of these facts that are highlighted within this article may not even be true next year. The law keeps on changing. This is why it is very important to seek advice from a family law specialist. This is the only way to ensure that you are getting the best advice for your specific case.