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3 Divorce and Separation

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1. Introduction

2. Where to start

3. Separation

4. Divorce

5. If you have children

The terms ‘custody’ and ‘access’ are no longer used officially or legally to describe which parent the child or children live with and how often the other parent sees them. The correct terms and ideas are explained in the next few paragraphs.

What is 'parental responsibility'?
Parental responsibility is the legal term used to describe all the rights and duties that parents have towards their children. For instance, it gives you the right to agree to medical treatment for your child, to choose which religion they are brought up in, or to choose the school they go to.

When a child is born, the mother has parental responsibility. The father also does, but only if he is married to the mother at the time of the birth, or (as long as the child was born on or after 1 December 2003) registered is the father on the baby’s birth certificate. However, later in the child’s life, the unmarried biological (natural) father of the child can get parental responsibility by:

  • marrying the child's mother; or
  • making a Parental Responsibility Agreement with the mother; or
  • re-registering the child's birth (if no-one was registered as the child's father in the first place); or
  • getting a court order.

If you become a step-parent because you marry someone who has parental responsibility for a child, you can also get parental responsibility for the child by:

  • making a Parental Responsibility Agreement with everyone who already has parental responsibility; or
  • getting a court order.

Both parents get parental responsibility if they adopt a child.

Also, any other ‘suitable person’ can get parental responsibility if the court orders this.

You do not lose parental responsibility if you get divorced. You will carry on being the children’s full legal parent, whether or not the children live with you.

How do we make arrangements for our children if we get divorced?
The court expects you and your partner to agree where the children will live (residence) and how you will arrange to see them (contact). If you can do this between you, there is no need for a court order. You should continue to make major decisions about the children together, but you can each act on your own if you need to – for example, to give consent to emergency medical treatment. You can get a leaflet, ‘Parenting Plans: Putting your children first’, to help you work out your future arrangements. This and other helpful leaflets about children are available from your solicitor or from the Children and Family Court Advisory and Support Service (Cafcass), the organisation that looks after children’s interests in family court proceedings (see 'Further help').

What if we can't agree?
If you can’t decide which one of you the children should live with (residence), or how often they should see the non-resident parent (contact), then you should think about applying to the court for an order under Section 8 of the Children Act 1989. Before you do this it is worth seeing whether you can use a mediation service to help you reach an agreement (see 'Can I avoid going to court?' for more on mediation). This is generally cheaper and less stressful for the whole family.

If mediation is not suitable for you (a mediator can help you decide this), either of you can apply to the court for an order. You can do this whether or not you have already started divorce proceedings. You do not have to ask a solicitor to act for you but it is probably a good idea to get some legal advice before you start.

The Court Service produces two helpful leaflets about court proceedings and children:

  • 'Children and Divorce'; and
  • 'Children and the Family Courts'.

The leaflets are available from the Court Service website. (See 'Further help' for details).

The court, usually with the help of an officer from Cafcass, will try to make sure that you and your partner can come to an agreement. To find out more about Cafcass, see 'Further help'.

If you can’t agree, the court will make an order. But the court will make an order only if it would be better for the child than not making one, and most cases involving children are usually settled by agreement fairly early. This is generally better for everyone, especially children, and it certainly saves a lot of legal costs.

If contact arrangements are causing problems, it may be helpful to use a Child Contact Centre as a neutral meeting place to begin with. Solicitors and courts will have details of your local centre. See 'Further help' for how to contact the National Association of Child Contact Centres.

What if there are specific issues that we can't agree on?
You can apply for a 'specific issue order' if you need the court to decide a single matter, such as where your child should go to school.

Also, the court can make a 'prohibited steps order' to stop one parent doing something that the other parent disagrees with, such as changing the child's surname.

6. Supporting your children

7. Money and property

8. Making arrangements should you die

9. Dealing with emergencies

10. Terms used in divorce and family law

11. Further Help

12. About this leaflet

This leaflet is published by the Gurkha Free Legal Advice (LSC). It was written in association with Imogen Clout, a solicitor and mediator specialising in family law.

Leaflet version: May 2009

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