Lawyers South London

If I have been separated for 2 years am I automatically entitled to a divorce?

Both parties consent is required on this basis, so it is important to check whether your spouse will consent or you will have to restart the process from the beginning after having the petition dismissed.

What if the respondent does not return the acknowledgement of service form?

If this happens, it will be necessary for a process server or court bailiff to personally serve the divorce documents on the respondent to prove valid service

I am the Respondent – what happens if the petitioner does not apply for the Decree Absolute ?

Providing 4½ months have passed since decree nisi the Respondent can apply for permission to apply for the decree absolute.

My spouse is the sole legal owner of the property in which we live or only their name is on the rent book. Will I have to leave the house ?

Not necessarily. If you are married then your solicitor can protect your interest by registering a Notice on the title deeds to the property. This will protect your interest because it will effectively stop your spouse from selling or remortgaging without your knowledge or consent until financial matters have been agreed or decided by the court, which has the power to transfer the property or the lease under which you occupy to you even if it is not in your name. The judge can also decide whether the property should be sold and whether you should receive money from the sale.

Divorce and Children

Residence issues are usually dealt with at the same time as divorce.  In the majority of cases, the parents will come to a private arrangement.  However, where this is not possible, the family courts will decide on the arrangements.

What is a residence order?

A residence order is a legally binding document issued by a family court which decides with who a child will live with.  In some cases, joint residence orders will be given and the child will live with both parents/persons with parental responsibility according to the conditions in the residence order.

What factors are taken into account when making a residence order?

In the first instance, courts will decide whether both parents are actually capable of taking care of the children.  Any history of violence or abusive behaviour and habitual use of alcohol and drugs may mean the parent is considered unfit to take care of a child.  The central consideration will be the welfare of the child, as well as how the child was cared for up until the time of the divorce and any other relevant factors (age of the child, the child’s wishes).  To aid the decision making process, the courts will usually appoint a Children and Family Court Advisory and Support Service (CAFCASS) officer.

What does a CAFCASS officer do?

A CAFCASS officer will be asked to write a report based on any questions the court has asked the officer to answer.  Their job is to generally investigate the situation further and provide factual information regarding the child’s welfare.  They collate their information by visiting the homes of both parents and through interviews.  They owe a ‘duty of care’ to the child meaning they are charged with making sure the child is properly cared for.

Do mothers always get custody of children?

The courts will generally presume that a mother is best placed to take care of very young children based on the notion that mothers and children are dependent whereas fathers are seen to play more of an independent, participatory role.

With older children, however, there is less of a bias in favour of mothers and other factors, such as where the child would like to live,  hold greater weight.

How are maintenance payments decided?

As with most issues involving children, the courts will respect any private arrangements that parents have come to, and in the majority of cases, maintenance payments will be decided privately.  However, disputes can and do happen.   If this is the case, an application to the Child Support Agency can be made who will decide the amount of maintenance to be paid with reference to standard guidelines and financial circumstances of the non-resident parent.

My former spouse is not allowing me to see my children.  What can I do?

Disputes usually happen over maintenance.  However, resident parents often fail to realise that maintenance payments are not a condition of contact.  They are two separate issues and as suggested above, the channel of legal redress for maintenance is through the Child Support Agency.  If you are being denied contact, you can apply to the courts  for a contact order.  Whether a contact order is issued and the conditions of it ultimately depend on the welfare of the child.  In most cases, courts will emphasise the value of both parents playing a role in their childrens’ lives.