Having parental responsibility means that both parents have the same responsibilities and rights as parents as far as third parties are concerned, they are both entitled to information concerning their child’s welfare and should consult with one another about issues such as their health, education and religion.

After separation, positive communication with the other parent is imperative. Unfortunately, child arrangements can breakdown and problems can arise when, despite communication, agreements cannot be reached. A typical example being a dispute over a child’s holiday; when one parent wishes to take the child abroad on holiday and the other does not consent.

If Children Act proceedings have previously taken place there shall be an existing child arrangement Order to be followed and this Order shall set out with whom the child lives and the time that is to be spent with the other parent. The parent who has the benefit of the “live with order” shall be able to take the child out of the UK for a period of less than one month without needing the permission of the parent who has the “spend time with order”.

To be clear, the “spends time with parent” will still need permission from the “live with parent” if they wish to take the child out of the UK, even if there is a child arrangement Order in place. However, if legal representation was provided through the course of those proceedings, holiday arrangements should be incorporated into the Final Order to ensure there is clarity going forwards.

The most pressing question to ask in the circumstance where a holiday cannot be agreed between the parents, and there is not an existing Defined Child Arrangements Order in place, is which parent has the responsibility to rectify the dispute?

It is common when one parent does not wish for their child to travel with the other parent that the non-travelling parent shall take matters into their own hands and seek legal advice. If matters cannot be agreed through solicitors’ negotiation or mediation, an application would be made to Court under section 8 CA 1989 for a prohibited steps Order; to prohibit the proposed holiday from taking place. It may well be that through the course of the proceeding assurances will be given to the non-travelling party which will alleviate all concerns, in which case an agreed Order could be entered into to enable the travel to go ahead.

Any Order made by the Court must be clear, setting out in plain terms what has been ordered and its duration.

It is important for the parent who is concerned about the travel to consider the following simple factors in their decision making;

– Will the child be kept safe.

– Does the travelling parent have the capacity to safeguard the child throughout the holiday.

– Does the child have the capacity to express their wish to attend, and if so, will the travel be to their benefit.

– Have the holiday details been provided including the destination, accommodation, inward and outward flight details.

– What is the likelihood of the child not being returned.

If all the above factors are not of concern, it is generally accepted that the holiday should take place.

If the non-traveling party does have concerns in regard to these factors, they must seek urgent legal advice. Where there is a possibility of the child being permanently removed from the UK it may be necessary to make an urgent application to the Court to request a port alert. If granted, the police should be urgently notified and they shall contact all ports and airports within the UK through the police national computer to ensure that the travelling party is not able to leave the country with the child.

If you have any questions or concerns about whether as a father you have parental responsibility, whether you need permission to take your child on holiday or whether you should stop your child being taken on holiday, then please contact NJS Law who can offer advice and assistance in all matters relation to child arrangements.

It is important to be open and transparent in regard to assets in both joint and sole names with disclosure needed from both parties at the earliest opportunity to enable constructive negotiations to take place, with the intention of contentious court proceedings being avoided wherever possible and to enable your divorce to be as amicable as possible.

The Courts jurisdiction is broad in scope and a financial order can deal with all the following;

– Ownership and occupation of the formal matrimonial home.

– The transfer of or continued ownership of all marital assets including; land, assets within the matrimonial home, other properties in either parties name, life policies, stocks and shares, savings and motor vehicles.

– Consideration of accrued pension benefits in terms of pension sharing orders or pension attachment orders.

– Spousal maintenance, also referred to as periodical payments.

– Lump sum orders.

Consent orders

In an amicable divorce, matters can be agreed through negotiation, consultation or mediation. The agreements shall be set out within the form of a draft consent order, also known As a Clean Break Consent Order. Once the contents of the consent order have been approved by both parties, the draft should be lodged with the court for a District Judge to consider.

There is an additional document that should be found alongside which is the financial statement, Form D81. This must be completed by both parties with both stating that the contents are true. Providing that the judge agrees to the provisions set out, the consent order will be sealed by the court and it shall become legally binding.

Procedure for court applications

The Pre-Action Protocol, which sets out the procedure for divorce and finances, must be followed which effectively means that there needs to be pre-hearing communication. If matters cannot be agreed by solicitor’s correspondence or mediation, consideration needs to be made for an application to the court. Once issued, the matter shall be listed for the First Appointment.
No less than 35 days before the date of the First Appointment, parties must simultaneously file and exchange a completed Form E, the financial statement.

The main purpose of the First Appointment is to define the issues that are in dispute and to save costs wherever necessary. The court is to determine the extent to which information and documentation is required and set out a timetable within the Order for it to be provided.
Thereafter the case shall be listed for the FDR, financial dispute resolution appointment. It is hoped that consultation can continue between the First Appointment and the FDR for matters to resolve where possible. If the FDR appointment does not resolve the dispute, the matter should be listed for a contested final hearing.

Costs

The general rule in financial proceedings is that neither party should be expected to pay the costs of the other party’s legal suit.
However the court may make an order for costs in such proceedings where it considers it appropriate to do so either due to the conduct of the parties for example;

– Failure by one of the parties to promptly provide documentation when asked to do so.

– A failure to comply with the rules and orders of the court.

– An open offer made by the other party to settle which has been flatly refused without justification thereby leading to unnecessary contentious proceedings.

– The manner in which the party has pursued or responded to the application for a particular allegation or issue.

– Any other aspect of a party’s conduct in relation to which the court considers it relevant.

– The negative financial effect upon one of the parties of any court’s order made.

If you require advice on any aspect of getting a divorce or dealing with finances, contact Nicholson Jones Sutton Solicitors.

Whether you anticipate it shall be a contested divorce or an amicable divorce, we can provided you with all the advice and assistance you require.

No Blame Divorce – We’re Nearly There 

On the 6th April 2022 the law will change to enable a spouse to petition for a divorce without having to cast any blame against the other. Until this time, unless a married couple has been separated for two years or more, a spouse will have to site “blame” on the part of the other, either by using the fact of unreasonable behaviour or of adultery.

The new law will remove the need for the acrimonious ‘blame game’ by allowing one spouse, or the couple jointly, to make a statement of irretrievable breakdown when divorce proceedings are commenced.

It will also stop one partner contesting a divorce if the other wants one, which in
many cases has enabled domestic abusers to exert further coercive control and manipulation over their spouse.

The very justified thought plan is this; to begin proceedings in this amicable way will reduce the detrimental impact that allegations of blame will inevitably have upon the couple’s relationship. We also must not forget the negative impact upon the children of the family when blame is cast from one parent to another and how avoiding this is imperative.

It is vital to encourage the positive progression of divorce proceedings and simply put, taking away the need to blame the other must surely be a great step in the right direction.

This is a revolutionary development that has been highly sought after within the Family Law profession for an exceedingly long time. It is very exciting that the time is finally here to initiate this coveted and necessary change.

The divorce procedure will become much clearer at the time of launch in April 2022 and the family team at NJS Law are here to help, advice and assist you every step of the way.

Please call us on 01625 667166 to book your consultation with our experienced family lawyers.