Kim Beatson, Partner
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Sometimes it seems as if a large part of family life is about problem solving - finding the right school for your child, organising transport to get everyone from A to B, even finding enough time to keep up with domestic chores while still having time for the fun things in life. But what happens if the problem is more fundamental and goes to the heart of the family itself? Kim Beatson provides some useful advice on how best to cope when parents separate or divorce.
Sadly, every year around 170,000 marriages will end in divorce, a devastating and traumatic event for all family members. A large number of cohabiting relationships, where the couple aren't married, will also end and the emotional turmoil will be just as great. Most of us have little idea of how to go about dealing with the practical consequences of family break-up, or its wider impact on family life. It can all seem daunting, confusing and distant. Like other family problems, there isn't ever a simple solution but there are a number of places you can turn to for support.
Finding the Right Legal Advice
If there is a realistic possibility that the relationship is saveable, Relate's couple counselling service may help. However, if divorce seems the best option, choosing the right solicitor to guide you through the process is perhaps the most important decision you will make. But where should you look and what should you look for?
For legal advice on family matters, the Solicitors Family Law Association is a good place to start. You can read up on the basics about divorce and separation through their on-line factsheets and search for a member near you using the SFLA's website - www.sfla.org.uk Many SFLA members are also mediators who can use their legal knowledge to help you negotiate an agreement with your spouse. Mediation can help couples to reduce hostility and tension, explore all the options and tailor-make solutions to their own particular requirements. Once an agreement is reached, a solicitor can advise on the formalities to make your agreement legally binding. Mediation can also help reduce the cost because the process can resolve many of the issues in dispute.
Many people choose a lawyer through personal recommendation while others are referred through Citizens' Advice Bureaux or search through the Yellow Pages. You should not be afraid of shopping around to find the person who you feel has the right approach for you. A good family lawyer is someone you should be able to rely on for advice and they should understand that when decisions need to be made, they must be your decisions. They should also help you understand the consequences of the decisions you make. Because they follow a Code of Practice, an SFLA member will be able to help you deal with matters in a way which helps you to preserve your dignity, encourages agreement between you both, where possible, and avoids unnecessary litigation. This is, of course, especially important when you have children.
Making Arrangements for Children
All too often, separating couples get caught up in their own emotions - despair, anxiety and, of course, anger and disappointment. It is easy to understand how the child's needs can be overlooked.
The excellent NCH website: www.itsnotyourfault.org provides a great insight into a child's eye view of family breakdown, with separate sections for parents and for children. The name comes from the most important message children need to hear from both their parents - "It's not your fault". Studies repeatedly show that children often believe that their parents' break-up is somehow the child's fault. Reassure them that it is not, and that they are loved by both of you. They also need to know that you'll both continue to be their parents and that you both love them.
The Solicitors' Family Law Association Offers these Tips to Separating Parents
- Tell your child what is happening - even if children do not know what is going on, they will sense that something is wrong, and know probably much more than you imagine.
- Tell them soon and tell them together - children will imagine the worst, until they know the reality. Agree what you are going to tell them, and do it together so that they can see you are jointly working out a resolution to the situation. They need to know that, jointly, you have the situation under control.
- Reassure them that it is not their fault - studies repeatedly show that children often believe that their parents splitting is somehow the child's fault. Reassure them that it is not, and that they are loved by both of you. Repeat this message often.
- Accept their reactions - and offer support - even though you plan to separate from your partner, you both remain parents forever. Give your child the freedom to react to the new situation. There are no right or wrong reactions. Then both offer them the support they need.
Encourage them to talk - it is helpful all round if you understand how they are feeling and how their feelings are changing as things move on. That way you can offer them the reassurance they need to cope with the new situation. - Try not to argue in front of the children - and never involve them in the issues which have led to the divorce, or ask them to take sides. They need the freedom to love both parents.
- Encourage your children to be caring and supportive, but don't let them carry your responsibilities - some children seek to take over the parents' role when families split. They need to know that they have a right to be children and to be cared for.
The courts needn't become involved in arrangements for the children's upbringing but, if you are a married couple divorcing, you will need to submit a Statement of Arrangements which sets out plans for the care of the children. There is no equivalent for unmarried parents but they are treated in much the same way as married parents if there is a legal dispute. The expectation is that parents will make their own arrangements to suit the needs of their family and ensure that both parents co-operate to continue to fulfil their role as parents wherever possible. Most people manage to achieve this, often with help from a mediator or a solicitor. The courts will only become involved if one parent makes an application to the court because they are unable to agree on how to share their responsibilities. Court should be seen as a last resort. Even if an application is made, it is still possible for the parents to make an agreement before the matter is decided by a judge. In-court conciliation services can help couples to do this and, from September 2004, new pilot schemes wil be operating in 3 English regions (London, Brighton and the North East) to trial a new way of supporting parents in resolving their disputes. A recent Government Green Paper outlined the aim that this should become the norm as all the research shows that court proceedings rarely provide the best outcomes for children and can be destructive. Disputes over the care of children are decided in accordance with the Children Act 1989. What used to be called 'custody' and 'access' are now known as 'residence' and 'contact'. The Children Act says that the child's welfare is the paramount consideration when the courts consider any question in relation to the upbringing of a child. therefore, the court will apply what is known as the 'welfare checklist' to help it make its decison.
The Welfare Checklist Looks At:
- The wishes and feelings of the child (considered in the light of his/her age and understanding)
- His/her physical, emotional and educational needs
- The likely effect of any change in his/her circumstances
- His/her age, sex, background and any characteristics which the court considers relevant
- Any harm which he/she has suffered or is at risk of suffering
- How capable each parent is of meeting his/her needs
An independent Child and Family Reporter may be asked to help you resolve the dispute or to help the court decide. The court will not make any order relating to a child unless it is satisfied that making an order would be better for the child than not making an order.
Divorce and the Myth of the Common Law Wife
Many people believe that there is no legal difference in legal status between couples who have been living together for a long time and married couples. They often think that after a couple has been living together for 2, 3 or 5 years, the couple acquires the status of a 'common law' marriage. This is, in fact, a myth. There is no such legal relationship. This often comes as a total shock when the couple has built their joint life together on the assumption that they were in broadly the same position as a married couple - they have not actually got the security they thought that they had. When a couple are married and the relationship ends, matrimonial legislation allows the courts to deal with the financial arrangements - property and maintenance - although in practice these are usually negotiated between the couple with help from lawyers or mediators. The court has the power to decide on a fair and reasonable distribution of the couple's property, taking into account a range of factors such as each person's contribution to family life and each person's needs. In recent years, the courts have to be keen point out the importance of domestic contributions to family life - running a home and raising children. These should generally be seen as no less valuable than the contribution of the spouse who goes out to work and brings home the household income. What is a fair outcome in any particular case will depend on the circumstances, but the courts have said that divorce settlements should be measured against a "yardstick of equality". The priority in most families will be the need to provide a home for any children an the person providing their day-to-day care. For a cohabiting couple, the biggest difference is that there is no in-built concept of fairness and recognition of the family relationship. There is no provision for maintenance, although one person may have given up a career to stay at home with children while they are small.
The couple are, therefore, at the mercy of property law which is solely concerned with who owns what - a very blunt instrument. Being awarded a share in any property depends on being able to establish ownership, either directly or based on a financial contribution. For example, if a woman lives with her partner for say 20 years and brings up their children in his house, she cannot expect any maintenance for herself. Nor will she share in the property if she has not paid for it either directly or, for example, by making a contribution to the mortgage. It does not matter that the reason she did not contribute financially was that she could not work because she had to be at home with the children. Even if she did make some financial contribution, establishing ownership is notoriously difficult as the law in this area is something of a minefield.
Professional advice is essential when making financial arrangements following divorce or separation as it is very easy to overlook things that might not seem important at the time eg. for many couples, a pension may be a more valuable asset than the family home. Pension arrangements will be especially important for couples divorcing in later life as failure to get this right can result in real hardship in old age. The approach taken to identify solutions in the early stages can make a real difference to your ability to get on with the rest of your life.
Written by the Solicitors Family Law Association
About the Solicitors Family Law Association - SFLA is an association of around 5000 members who are committed to promoting a conciliatory atmosphere in which family law matters are dealt with in a sensitive, constructive and cost-effective way. It sets high standards of good practice in family law and runs an accreditation scheme for specialist family lawyers. SFLA solicitors aim to help separating couples achieve a constructive settlement of their differences in a way which avoids protracted arguments and promotes co-operation between parents in decisions concerning children. Because they are not adversarial, the overall cost of using an SFLA solicitor can be less than those with a different approach.
For further information email Kim Beatson or call 020 7940 4000.
