Family Law

Family Law FAQs

• What is Parental Responsibility?

  Parental Responsibility is defined by law as “All the rights, duties, powers, responsibilities and authority, which by law a parent has in relation to the child and the administration of his or her property.”

  The law does not list what these duties, powers and rights are, but in simple terms it gives a person responsibility for the care and wellbeing of a child. Examples include:

  • Choosing where and how your child is educated,
  • Agreeing to medical treatment,
  • Changing a child’s name,
  • Obtaining a passport or limiting its use
  • Choosing the culture and religion of a child
  • Having a say in a child’s adoption
  • Allowing you to appoint a Guardian on your death,
  • Day-to-day things, like signing consent forms for school trips and simple medical treatment.

• Do I have Parental Responsibility?

  The mother of a child will have Parental Responsibility from when the child is born.

  The position with fathers can vary. Fathers will have Parental Responsibility in various circumstances:

  • When they are or have been married to the mother at any time from when the child was born
  • When a child was born after 1 December 2003, they are registered jointly with the child’s mother on the birth certificate
  • A formal legal agreement has given them Parental Responsibility, either in agreement with the mother or by an order from the court

• Am I allowed to travel abroad with my child/children?

  Unless the Court gives permission to you, the consent of every person who has Parental Responsibility for the child is required before they can be taken out of England & Wales, no matter how short the trip may be.

  However, if you have an order from the court for Residence or Special Guardianship you are permitted to travel for:

  • up to one month in the case of a Residence Order, or
  • three months in the case of a Special Guardianship Order.

  You can do so without the consent of any other person with Parental Responsibility or the permission of the Court.

• I’m married but separated, why should I make a Will?

  If you do not have a valid Will you will get no say in what happens after your death.

  If you die without having made a valid Will, and you are still legally married (even if you are separated) then your spouse will still inherit from your estate. 

• I haven’t seen my grandchild since the separation - what can I do?

  The significant people in a child’s life often stretch beyond their mother and father to include grandparents and members of their wider family including non-blood related individuals.

  When the parents of a child separate, contact with the wider family can become problematic, sporadic and in some cases, cease completely. If this happens, what can you do?

  Be patient
  Always keep the child at the centre of everything. Their welfare is paramount and it is crucial that you do not get embroiled in arguments or take sides. Ideally, all the significant people in a child’s life will get on well, but the most important thing is to be civil and respect each other’s relationships with the child.
  Be patient. The breakdown of a family unit can be extremely difficult as well as emotional; there may be many issues that will need to be resolved before returning to a normal routine.

  Mediation
  If you have been patient and are still struggling to make suitable arrangements through the parents of the children, we recommend you try attending mediation. The mediator will encourage constructive communication and try to help all parties reach an agreement.

  Apply to Court for a Child Arrangements Order
  The last resort is an application to court. Grandparents and other extended family members do not have an automatic right to have contact with a child but they can apply for permission from the court to apply for what is known as a Child Arrangements Order.

  Step 1: Permission to apply
  When deciding whether to grant permission to apply for a Child Arrangements Order, the court has to consider
  a) The nature of the application (usually for contact);
  b) The nature and quality of the applicant’s connection with the child.  (They do not have to be a blood relation of the child but there does need to be a genuine and important connection);
  c) Any harmful disruption that could be caused to the child. 

  Step 2: Making the application
  Where permission is granted, the court will consider in detail whether it would be in the child’s best interests for contact to take place and if so, how and when.

  It is important to note that even though you may be successful in applying for permission to make the application, the application itself for a Child Arrangements Order may or may not be successful. They are two completely separate steps.

  If you are considering making an application for contact time with a child or children in your family, we can help. Call our family team for free first advice or email familylaw@incemetcalfes.com  

  
  

  
  

• Do you offer fixed fee divorces?

  We offer fixed fees for a divorce depending on your situation, including whether you are the one applying for the divorce or whether you are responding to a claim from your partner.

  Please contact us and we will be able to discuss the services available to you.

  We will try to understand the pressures you and your family are likely to be under when thinking about a divorce or separation and want to help you to achieve workable solutions. Ultimately, our solicitors are here to guide you through each stage of the divorce or separation process and will always provide straightforward, practical and cost-effective advice.

• What is Mediation?

  Mediation is not reconciliation and it is not counselling.

  Mediation is the process by which you and your partner meet together with an independent, trained third party called a mediator. They help facilitate discussions between you both, to help you reach agreements about finances and property, and arrangements for the children.

  It is sensible to receive legal advice alongside the mediation process, as this ensures you are well informed about your legal position. Also, as the mediator is impartial they cannot give you independent advice.

• What is ‘Civil Partnership Dissolution’?

  Dissolution is the legal term used for the legal process in which a civil partnership is bought to an end.

  If you are married, this is known as divorce. The process follows an almost identical process; please see our divorce advice.

• What is a pension sharing order?

  This is where one partner gets a credit or top-up from the other’s pension fund to ensure you both get an equal pension income either now or when you reach retirement age.

  For example, if a husband is already in receipt of his pension, and has a younger wife, it is important to appreciate that she won’t usually be able to begin claiming an income from a pension fund until she’s 55.

  If the wife is 53 years old, this means any pension sharing order will not provide an income for her for a further two years. This is described as the ‘income gap’ and will be something your solicitor will be able to advise you on.

• We have a pet - what happens if we separate?

  We are frequently asked about what happens to pets in the event of a separation - we know that pets are usually a loved part of the family.

  A pet is defined as a “chattel” (personal possession) - as such, the first question will always be who purchased the pet. Ownership would normally rest with the party who could evidence the purchase.

• Are pre-nuptial agreements legally binding in the UK?

  The law relating to pre-nuptial agreements has developed following a case in the Supreme Court.

  The law relating to pre-nuptial agreements has developed following a case in the Supreme Court. The case was called Radmacher v Granatino and was decided in October 2010.

  The key points of the current law are as follows:

  • When considering the role of a pre-nuptial agreement in a financial claim on divorce, the starting point is the relevant law, which is the Matrimonial Causes Act 1973. Section 25 of that Act says that a judge must consider “all the relevant circumstance”s of the case when deciding how to divide the parties' finances on a divorce.
  • A pre-nuptial agreement is considered as ‘a relevant circumstance of the case, to be weighed by the judge. A pre-nuptial agreement will have a substantial impact on the judge's decision in many cases.
  The Supreme Court said in Radmacher v Granatino that the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
  • No agreement between the parties can override the legislation or prevent the judge from deciding on the appropriate division of assets on a divorce. This means a pre-nuptial agreement cannot absolutely stop a spouse applying to the court for financial provision from the other spouse. Any "waiver" of the right to apply to the court for financial provision in an agreement will not be effective.

• The ‘Common Law’ Marriage Myth

  If the family department at Burroughs Day had a £1 coin for every time we were told “but we have a common law marriage”, we would be very rich indeed. In the eyes of the law - this simply doesn’t exist.
  Where does the misconception “common law marriage” come from?

  ‘Common Law Marriage’ has evolved from the notion that “common law” exists – (it does not). Many couples believe Common law Marriage arises when they have lived together for a long period of time, pooled their resources to buy property, build up joint assets and most likely had children.

  While it might feel as though they are married in all senses of the word, they are not legally married which means they are not treated as being legally married. Inevitably this can cause problems if the relationship ends or if one of them dies.

  If I am not married but I live with my partner, what legal rights do I have in the event of a separation?
  If you have financially contributed to property or other assets, then you may have a financial interest. This is a complicated area of law.If you have children together, you may likely have a claim under Schedule 1 of the Children Act 1989 for property and capital support for the child.

  I do not want to get married but we live together and I want to protect what I own; should we decide to separate? The best solution is a cohabitee agreement - this will set out what will happen in the event that you and your partner ever parted ways.

  A cohabitee agreement sets out legally what would happen to any property, animals or other assets you or your partner may have to enable you to go your separate ways with the minimum of fuss and legal expense. This should ensure that you are not left arguing over who should have the sofa!