Q. If I have parental responsibility for my child do I automatically have contact rights?

A. Although parental responsibility gives you certain legal rights in relation to the upbringing of your child and gives you some rights in terms of seeing them it does not automatically give you the right to contact them or have them visit of stay with you. If you cannot agree this amicably with your partner you will need to apply for a Contact Order from the courts.

There is more detail in our article – Parental Responsibility and contact orders – the same thing?

Q. I’ve got parental responsibility so why am I told I can’t have access to my children?

A.

Parental responsibility does not really sort out the issue of access (now known as 'contact' in legal circles).

From your question it seems, your ex-spouse is the one preventing access.  If you cannot discuss this with them and come to an agreement then you will have to appeal to the Courts to make a contact Order.  A Contact Order is legally binding and your ex-spouse will be required to cooperate with contact.  Anyone with children, going through a divorce or separation should really take advice from a family lawyer on the issue of child contact and residence, before agreeing anything with their spouse.   You can book a free initial appointment with a family lawyer here.

Q. I cannot afford the CSA demands what can I do?

A. A number of assessments made by the CSA are incorrect.  You should check carefully all the information used by the CSA to make their assessment, especially income.  You are legally bound to pay the amount requested by the CSA until such a time as your circumstances change.  The organisation NACSA offer a to check your assessment for a small subscription fee to their service.  This is often much more cost effective than involving a lawyer initially.

Q. If I leave will I be allowed to see my children?

A. The starting point is that contact with both parents is desirable, and likely to be in the child’s best interests, unless there have been allegations of, for example, abuse or neglect. If you cannot agree a sensible pattern of contact with your spouse/partner, you can ask the court to step in and make an order. The court will take into account a number of factors, called the “welfare checklist” to decide whether contact is in the child’s best interests. Such factors include the child’s own wishes and feelings and age. Clearly, contact needs to be age appropriate, and if the child is very young, it might be sensible to increase the level of contact gradually.

Q. How much child maintenance will I get?

A. If you have children who live with you, you will be entitled to receive maintenance for their benefit from the non-resident parent. The amount will depend on the Child Support Agency’s guidelines. You can decide whether to use the CSA or agree a figure privately.

For more details, you may wish to look at the CSA website www.csa.gov.uk

Q. Can the children still live with me?

A. Usually if the children are settled with a particular parent, who is their primary carer, the courts will be reluctant to disturb the status quo except in extreme cases, such as where there have been allegations of domestic violence or child abuse.

The court does have the power to make orders determining when the child will see his or her parents (contact) and where the child will live (residence) if there is a dispute. Normally, the courts operate a “no order” principle, which means that they will not interfere by making an order unless doing so is in the child’s best interests.

Q. Can the biological father of our child take him away from us?

A. The full question:  Myself and my girlfriend conceived our baby with the help of a male friend. He promised he wouldn’t want to be involved with the baby but now is demanding to see him on his own. Can he take our baby away from us?

The first thing you have to acknowledge is that this man is the child’s biological father, and this will never change. He does have the right to make applications for Contact via the Courts. The biological father can apply to the Court at any time for a Contact Order, be it now, or in five or ten years time.

It is very difficult for me to speculate as to the likely outcome of any Application. What I will say, is that I am almost certain that he could not take your baby away from you. You are your baby’s main carers and the court would have to have grave concerns about your ability as parents to even consider the possibility of this man taking over. We regularly advises couples on parental responsibility issues, call us on 0800 3213832 or email us with your full details.

Sorry we do not handle legal aid or publicly funded cases.

Q. As soon as I mentioned divorce to my husband he said he'd stop paying to support our children. Help!

A. As the courts no longer have the power to award maintenance for children it might be better to consider a separation agreement before obtaining a divorce. Such an agreement can include provision for child maintenance, and is enforceable through the courts. Once you have such an agreement you can obtain a divorce afterwards.

Q. If I agree to a divorce from my wife, will she automatically get custody of our children?

A. Custody and access no longer exist in legal terms. The court can no longer award custody of children to either parent, or order the parent who has the day-to-day care of the children to allow access to the other parent.

Instead the court has the power to make certain orders which may affect where the children live, how frequently you see them and so on. These orders will only need to be used if you cannot agree with your partner. The first step should be to try and come to an amicable agreement with your partner. If this is not possible you may wish to apply for a Residence or Contact order to secure your rights to contact with your children. Your lawyer can arrange this for you.

Q. Will I get maintenance from my ex-civil partner?

A. The same range of financial remedies are available to you as are available to divorcing couples, and this includes maintenance. Whether or not you are entitled to maintenance will depend on a range of factors such as your age, and earning capacity to name a couple.

For more details of your personal entitlement, we recommend that you book an initial free 30 minute consultation with one of our lawyers to discuss your options in more detail. Call 0800 321 3832 to make a telephone appointment.

Q. Can I get divorced?

A. Yes, a Civil Partnership can be dissolved, provided you registered your civil partnership over a year ago. The Civil Partnership Act 2004 gives you access to almost exactly the same procedure as divorcing couples. The only difference is that you cannot dissolve a civil partnership on the basis of adultery.

Q. Can I get a divorce based on my own adultery?

A. No.  You cannot petition for divorce based on the grounds that you have committed adultery.  Your spouse could petition on these grounds, or you could use other grounds for divorce, most commonly unreasonable behaviour. 

Book an appointment to discuss how you can obtain a divorce.

Q. Does a divorce include sorting out the house and finances?

A. In legal terms a divorce is purely the ending of a marriage. Any dispute about money or property is not part of a divorce case.

Apart from interim maintenance, you have to obtain a Decree Nisi before the court will become involved in any dispute about matrimonial finances or property. Even then, the court does not do this automatically. One of the parties has to commence a separate case (called an ancillary case) by filing further papers at court and paying a fee. Ancillary cases take many months to go through the courts and are also very expensive. There are at least two, and sometime three court hearings, and this type of case costs several thousand pounds by the time you have included barristers fees, valuers fees and many other fees and costs.

The best way to deal with matrimonial finances and property is to negotiate a settlement, and then ask the court to make an agreed final order. You don’t have to appear in court for this, and it is much, much cheaper than a separate court case, just a few hundred pounds. This is something that we can help with. For more details read our financial settlements fact sheet.

Q. I’ve heard that a divorce takes years and costs thousands of pounds – is this true?

A. Not really. You might sometimes have to wait for two years before actually starting a divorce, if you have both agreed to base the proceedings on two-years separation and you have only just separated, but in all other cases a divorce takes between three and six months to complete, especially if you have expert representation to ‘smooth out’ any problems along the way. A straight-forward divorce, where both parties are in agreement can be completed by Woolley & Co for a fixed fee.

Q. Can we separate without getting a divorce?

A. If you have decided to separate, but do not want to consider a divorce for the time being, a separation agreement is strongly recommended.

Such an agreement sets out what you both agree should happen to the matrimonial home, and all the other assets such as savings and investments, endowment policies and pension funds. This means that there are no 'loose ends' which can cause problems later. Also, maintenance for children can be agreed in such a document. The courts can enforce all aspects of a separation agreement if necessary.

For more information read Separation Agreements or if you would like us to arrange a Separation Agreement for you visit our fixed fee advice section.

Q. Will I have to appear in court?

A. In the case on an uncontested divorce you will not be required to appear in Court. A court appearance will only normally be necessary in the following circumstances:

• You cannot agree a financial settlement and the case goes to a hearing (this is explained in more detail in the Finances section of this site.
• You cannot agree the arrangements for looking after your children

Q. Can I start the divorce?

A. If you have been married for more than 12 months and can demonstrate grounds for divorce (explained in Divorce and Grounds for Divorce) – you can start a divorce. The process is explained in more detail in the How to get a UK divorce section.

Q. How do I get a divorce?

A. This is covered in detail in How to get a UK divorce. If you want to understand the grounds under which you might obtain a divorce this is covered in Ground for Divorce.

Q. How much does a divorce cost?

A. A straight-forward, uncontested UK divorce can be handled by Woolley & Co for a fixed fee of £1,171.91, this includes VAT and Court fees of £340 which are compulsory.

If you and your spouse cannot agree on the reasons for the divorce, arrangements for the children or the division of matrimonial assets you will also need to budget for a lawyers time to advise you on these matters. This is covered in the Cost of Divorce section in more detail.

Q. Can I take my children abroad to live?

A. This is a complex area of the law and you will need to consider who has parental responsibility for the child and whether there are any court orders in place.  Read a more detailed answer about relocating children abroad.

Q. Do I need an expat divorce?

A.

You will need an expat divorce:

• If you are originally from England or Wales, currently living in another part of the world and want to use the English Courts to obtain a divorce.
• If you have lived outside the UK for a number of years, have only recently returned and want to divorce here.
• If you are from outside the UK, have made your home in England or Wales and choose to divorce here.
• If your spouse lives outside the UK and there may be issues in tracing them or debate about where to get divorced.

There are some other circumstances where an ‘expat divorce’ applies. There are some complex legal issues to consider so it always best to take advice from an expert in international divorce issues.  Book an initial free appointment with a family lawyer here.

Q. How much maintenance will I get?

A. Whether you get maintenance and how much you get depends on various factors, including the length of your marriage, whether or not you are working at the moment, and your age. It is possible in some cases to capitalise a maintenance claim so that it is paid as a lump sum instead of in monthly instalments.

For more details of your likely entitlement, please contact one of our lawyers to arrange a free initial 30 minute consultation on 0800 321 382.

Q. Who will decide who gets what if we split?

A. If you can agree between you who gets what, so much the better as you will avoid costly and stressful court proceedings and solicitors’ letters. The family lawyer’s job is then confined to drafting up the agreement that you have reached, obtaining the court’s approval, and implementing it. You should be aware that the courts do not just “rubber stamp” these agreements, and can sometimes raise questions if the arrangement is particularly complex or seems heavily biased in favour of one party.

The courts expect you to take a “cards on the table” approach and exchange all your up to date financial information with each other. You should bear in mind that if your solicitor hasn’t seen full disclosure from both of you, they won’t be able to advise you as fully on the merits of your agreement. In these circumstances, your solicitor would normally ask you to sign an indemnity to show that you understand this.

If you can’t agree with each other who gets what, there are other options, such as mediation, and collaborative law open to you to help you negotiate a settlement.

If all else fails, and your spouse continues to be difficult, the court can decide what happens. All you need to do is issue an application called “ancillary relief”, and the court’s timetable begins to run. For more details, read the Finances section of this site

Q. Will I have to sell the house if we get divorced?

A.

Whether or not you will have to sell the house depends on a range of factors, such as:

• Your income;
• Your earning capacity; 
• Any other property and financial resources which either you or your spouse own or are likely to have in the foreseeable future; 
• Any financial needs, obligations and responsibilities which either of you have, or are likely to have in the foreseeable future;
• The standard of living enjoyed by the family before the breakdown of the marriage;
• Any physical or mental disability of either of you, or your children; 
• The contributions which you have both made to the marriage, both in financial terms and also in looking after the home and caring for the family; 
• The conduct of both you, if the court thinks it would be unfair to ignore it

These factors as known by lawyers as “section 25 factors”, and your lawyer at Woolley & Co will be able to guide you through them, and suggest a solution that is appropriate for your family, bearing in mind that everyone’s circumstances are different.

The needs of any child to the marriage are given “first consideration” by the courts who will balance the housing needs of your children (for example that teenage children of the opposite sex will need separate bedrooms), with the financial resources available to you both.

There are usually three options regarding what happens to the former matrimonial home when the finances are divided on divorce. Either:

(a) You sell the house and split the proceeds according to pre-agreed shares. A 50/50 split may or may not be appropriate, depending on various factors, such as the length of the marriage, and the contributions made to the property. If you can’t agree on your shares, it is possible for the money to be held in a secure solicitors’ bank account until you can agree. In the meantime, the solicitor will have to account to both of you for any interest earned; or

(b) One of you keeps the house, and “buys the other out”. This means that you pay the other party a lump sum in return for the property being transferred into your sole name. This is effectively to compensate them for their share in the property, and allows them to put a deposit down on their own property if they want to. If you are considering this option, the party who keeps the house will need to see a mortgage broker to check that they can afford to take on the existing mortgage or that they have enough borrowing power in their own name to remortgage; or

(c) The sale of the house is postponed, and one of you remains in the property in the meantime. The person who leaves the house takes a charge over the property, which is usually expressed as a percentage of the total value of the property. The sale of the house will be “triggered” on the first to occur of certain events, usually:

(i) The death of either party;
(ii) The youngest child reaching the age of 17 or finishing full time secondary education, whichever is the earlier; or
(iii) The remarriage of the person retaining the property. As with option (b), the person remaining in the property should make sure that they can take on the existing level of borrowing, as often the person who leaves will need to get a new mortgage for their new property.

So, whether you will have to sell the house or not depends on a number of factors that will need to be balanced against each other. All of our lawyers at Woolley & Co will be able to guide you through the process and help you reach the right solution for your family. For an initial consultation, please fill out the book appointment request and one of our lawyers will get back to you within 24 hours.

Q. As soon as I mentioned divorce my husband said he'd stop paying to support our children. Help.

A. As the courts no longer have the power to award maintenance for children it might be better to consider a separation agreement before obtaining a divorce. Such an agreement can include provision for child maintenance, and is enforceable through the courts. Once you have such an agreement you can obtain a divorce afterwards.

Q. What if my partner won’t leave our shared property?

A. If you have not entered into a living together agreement then much will depend on how the property is owned, or rented. If it is in joint names, the chances are that you won’t be able to force them to go easily in the short term. If things have deteriorated badly, and there is any aggression from your estranged partner, this makes the situation very different. You should contact an experienced family lawyer immediately to discuss possible emergency remedies.

How do I know I’m getting good value for money – there seem to be a lot of variations in lawyer’s fees?

A lot will depend on the number of years that the lawyer has been dealing with family and divorce cases. You may find a firm offering what looks like a low quote but what they may not tell you is that your case would be handled by a junior lawyer, or even a trainee. At Woolley & Co we only have very experienced and highly trained lawyers and, once you have instructed the lawyer of your choice, no one else will handle your file. A fixed fee option helps you to understand what the divorce will cost in total. To review our fixed fee advice options visit How we work.

Q. What if my partner leaves, but stops paying the bills?

A. If your partner has left and taken their name off the utility bills, you will only be able to pursue them for maintenance to help pay these if you were married to each other. The only other maintenance which will be available regardless of whether or not you were married will be for children. However, this is worked out according to a national calculation, which has no relevance to how much the bills are.

Q. Will a prenuptial agreement stand up in court?

A. When you marry your assets become ‘matrimonial assets’ and, unless specifically protected can be considered for division between you within divorce proceedings. The main purpose of a pre-nuptial agreement is to limit the potential claims on the assets of one of the parties to the marriage and avoid costly litigation over “who gets what”.
At present a pre-nuptial agreement does not carry the same weight as a Court order and will not ‘automatically’ be upheld or enforced by an English or Welsh court in the event of a divorce and/or disagreement.
The courts do however take them seriously, as a prenuptial agreement is evidence of your intentions to one another in the event of your relationship breakdown and one of the factors that a court may take into account when looking at all the circumstances of your case.
The Court will carefully consider things like:
1. Did the party with the most to lose understand the nature of the prenuptial agreement?
2. Did he/she have independent legal advice?
3. Was he/she under pressure to sign?
4. Was there full financial disclosure?
5. Would an injustice be done if the prenuptial agreement were upheld?

Q. How do I get a prenuptial agreement?

A. 1. If you have decided to marry don’t wait till the last minute make it a priority in your wedding plans. An agreement signed on the way to your stag or hen party is less likely to be upheld than one carefully thought out and signed a month or so before.
2. Both parties must take independent legal advice. This avoids accusations, further down the line if things go wrong, that undue pressure was put on one party or the other to sign the agreement. It also means that both parties can ensure that the party with the most to lose understands the nature and implications of the agreement they are about to sign.
3. Full disclosure of each party’s respective financial positions must be made prior to the agreement being prepared
4. Think carefully about the terms and make the agreement as precise, clear and detailed as possible.
5. Think about and decide upon how you would deal with changes in circumstance that may arise during the marriage. For example, if you are thinking of having children, loss of employment, inheritances, pension provision, and the acquisition of further assets and what would happen in these instances.
6. Also consider putting in reviews of the agreement at agreed periods during the marriage, the length of the marriage can have a bearing on whether or not the agreement remains enforceable and regular reviews of the provision can help with this.

Q. What is a prenuptial agreement?

A. A pre-nuptial agreement is a document in which a couple set out their rights to any property, debts, income and other assets purchased together or acquired individually or that they have bought into their relationship in the event that the relationship ends.

Q. Do I need a prenuptial agreement?

A. If the answer “Yes“ to any of the following scenarios a prenuptial agreement could be right for you.

1. I am thinking of getting married and want to protect my property in case it doesn’t work out.
2. I am about to marry for the second time and want to limit any potential claims on the settlement I received from my first marriage if things go wrong again.
3. I am a widower thinking of marrying again. I want to protect my assets in case things go wrong.
4. I am about to marry but worry that if things go wrong we could end up in a costly and lengthy argument about “who gets what”
5. I am about to marry for the second time but want to protect my assets to ensure I have something to leave in my will to the children from my first marriage if my new relationship breaks down.

Q. How will our children be effected?

A. The biggest issue from your children’s perspective is that all of a sudden, they may be faced with seeing a lot less of Mummy or Daddy, and it can be hard for them to adjust.

It is sensible, if possible, to try and establish a regular routine of contact with your children and your ex, so that everyone knows what to expect when. It can be helpful to colour in sections of the calendar as “Mum time” and “Dad time” so that everyone knows where they stand.

If the relationship has completely broken down to the point where this not possible, you can issue court proceedings to decide where the child will live, how often and where they will see the non-resident parent. You can also ask the court to make orders on specific issues where necessary.

Financial support is another issue that may impact on your children, following the breakdown of your relationship. Many people believe that the amount of maintenance they have to pay is linked to how often they get to see their child and if they do not have any contact, they do not have to pay maintenance. This is not the case. Child maintenance for unmarried couples is usually dealt with by the Child Support Agency, and the minimum that the non-resident parent will be expected to pay will be in accordance with the CSA’s guidelines.

Q. Will I get maintenance?

A. At the moment, you will only get maintenance for the benefit of your children with the partner you are splitting from. The law in England and Wales does not currently recognise the concept of a “common law” husband or wife, contrary to popular belief. However, watch this space as the Law Commission is considering reforming the law in this area.

Q. What are my rights if we separate?

A. Contrary to popular belief, there is no such thing as a “common law” spouse, and the laws protecting co-habiting couples are not as comprehensive as matrimonial laws. That means there are few automatic rights for cohabiting couples.

The following would need to be taken into account in terms of understanding your rights in relation to property, assets and any children in the relationship:

Property – is your name are on the deeds to the property? If yes then you will have some rights. If not there are some circumstances which may allow you to claim an interest in or possibly a right to occupy your former partner’s home, for example if you have paid money towards it, or if it has been occupied by you as a home for the children of the family. This is a complicated area of law and it is very important you take professional advice.

Join Assets – who purchased the asset (for example a car, large item of furniture or expensive painting or ornament)?

Children – a mother automatically has parental responsibility for her children, meaning she has rights and responsibilities in relation to where they live, go to school etc. Unmarried fathers will only automatically have any rights in particular circumstances. These are detailed in the Parental Responsibility section of this site.