Divorce – Severn Valley Business Group
 

Tag: Divorce

How can separating parents make arrangements for their children?

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When an application is made to the court a Child Arrangements Order can determine who a child will ‘live with’ – this used to be known as Residence, and with whom they will ‘spend time’ – previously known as Contact. These types of Orders can cover the day to day care of the child, but also special times such as birthdays, holidays and Christmas.

When making an application to court, parents should first try and agree the arrangements, and this can be achieved at family mediation. If an agreement cannot be reached, an application can be made to Court for a Child Arrangements Order.

An application is made to the court on a form C100, this form sets out the details of the parties involved and the children.  In this form you are asked to state what orders you are seeking. It is important to consider accessing legal advice before making this application. There is a separate form to complete if you allege harm or domestic violence.

Once the court has processed the application, the matter is listed for a hearing known as a First Hearing Dispute Resolution Appointment. (FHDRA). The court will send a copy of the application to the other party and they should complete an acknowledgement form and return it to the court to confirm that they have seen the papers. Your matter is then before a Court and subject to a court timetable.

The court have powers to make a variety of orders in the child’s best interest and will be concerned to uphold the welfare of the child with regard to certain statutory factors. Court proceedings can be protracted and expensive, and legal advice is recommended.

At Onions & Davies solicitors we can advise and assist you in these matters, as Resolution members we aim to deal with matters in the most amicable way possible, and advocate that parents should be the ones who make the decisions for their children. We endeavour to provide pragmatic advice to help guide parents through what can be a very difficult and emotional time, so that they can make the best decisions for themselves and their family.

If you wish to access family mediation, our Family mediator Louise Martin is Resolution trained and experienced in mediating children issues.

To obtain advice by appointment please do not hesitate to contact the family team on 01630 652405.

By Kim Mapperson, Solicitor

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End the Blame Game… an Update!

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We are hopeful, here at Onions & Davies Ltd, that long-awaited divorce reform is afoot as news is released that there is to be a public consultation on introducing ‘no-fault’ divorce.

As explained in our blog earlier this year, ‘End the Blame Game’ in order to obtain a divorce in England and Wales at present, an applicant  must demonstrate to the Family court that the marriage has irretrievably broken down, and she/he does that by relying on 1 of 5 facts: adulterydesertion2 years’ separation with consent5 years’ separation or so-called unreasonable behaviour.

Our Louise Martin, Head of Family, family mediator, and member of Resolution: First for Family Law, says of the news

“it is about time that we are able to rely on divorce law which assists family practitioners to take the heat out of what is very often an emotionally-fuelled process, and lay the focus on achieving for our clients a workable, fair and child-focused resolution”.

Tini Owens’ case demonstrates in all its glory the absurdity of not being able to access a remedy under our legal system in 2018 because, under current divorce law, she has been unable to convince the Court of her husband’s unreasonable behaviour.

At the time we published our blog ‘End the Blame Game’ back in June, Mrs Owens was awaiting the decision of the Supreme Court which has now been delivered. She was unsuccessful as the Supreme Court unanimously rejected her appeal, and she is now forced to remain married to her estranged husband until she qualifies to divorce him based on 5 years’ separation in 2020. It was the plight of Mrs Owens which has highlighted the need for reform, with Supreme Court President Lady Hale commenting herself on the issue, but noting that legislation is what is needed to effect change.

Resolution continue to campaign for no-fault divorce under the hashtag #abetterway and the country will be hard pressed to find a family practitioner today who would not be pleased to see it in practice!

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Divorce – It’s No ‘Quick’ Fix

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At Onions & Davies Solicitors we have been advising and assisting clients with divorce for decades, and we are experienced in achieving for our clients good financial remedy outcomes enabling our clients and their children to move on in their lives post-separation.

We have until relatively recently been able to advise our clients that they should be able to achieve a divorce, assuming matters are straightforward and undefended, within 5-6 months. Appreciating, however, that financial matters may take a little longer, and that Decree Absolute in divorce proceedings may be delayed until a financial order has been made.

These days, however, the time it takes to achieve a divorce makes for rather depressing reading. The Ministry of Justice publishes quarterly Family Court statistics, and those published in June 2018, confirm that the average time it takes to achieve Decree Nisi is now 27 weeks, and 51 weeks to reach Decree Absolute.

So why the delay?

Well all divorce applicants must wait at least 6 weeks from Decree Nisi before applying for Decree Absolute anyway, and so some delay is naturally expected here.

The 24 weeks reported between Decree Nisi and Decree Absolute, will in fact be due to some extent to the fact that
applications for financial remedy cannot be processed by the court until Decree Nisi, and so it is at this stage of the process where we expect to see either financial remedy hearings before the Family Court or negotiations between
solicitors, or via family mediation perhaps, in full swing. The finances, usually the family home amongst others, can often be the most important issues to resolve.

The way that the system operates, however, has changed since the implementation of the Single Family Court in April 2014 and the new regional divorce centres – the most local to our offices being West Midlands Divorce Unit in Stoke on Trent.

This sees practitioners no longer choosing where to issue proceedings and dealing with trained court staff for processing and updates, but instead lodging applications centrally with the local divorce centre, and seeing cases being ensnared in administrative delay, with only call centre handlers to speak to.

These changes followed fairly soon after the LASPO Act reforms in 2012 which essentially made legal aid inaccessible for private family law matters such as divorce, financial remedy and private children matters – I.e. cases involving children which have been brought by private individuals such as parents or grandparents (as opposed to the local authority – public children matters). These reforms have meant that legal representation must be privately funded and, for those who are not able or willing to pay, the court will deal with them directly as Litigants in Person (LIPs).

Naturally, LIPs invariably do not have the legal expertise or knowledge of a family lawyer, which means the magistrates or Judge are tasked with ensuring that the issues and procedures are fully explained. The provision of this extra assistance, has created a huge burden on the court system, and added to the delays.

At Onions & Davies Solicitors we are sensitive to the fact that our clients can find legal bills difficult to manage. Do not rule out speaking to us if you wish to access expert legal advice but wish to manage your bills. We can talk you through your options at a no-obligation fixed fee initial appointment. Call Sharon on 01630 652405 for details.

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Blowing the full-time whistle on marriage.

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A modern marriage has a number of strains to endure. Some survive, and some do not, and this is increasingly accepted as a sad fact of life.

As family lawyers we expect to see more new appointments at certain times of year: after the school summer holidays and in the new year for example, when the pressure cooker of family life can be too much for one or both parties to see a way forward together.

The World Cup is upon us and it can be at times like these when differences of opinion can be highlighted, and tensions fraught. Perhaps a perfect storm for demonstrating the weaknesses in what once may have been a more united front.

No spouse makes the decision to end their marriage lightly. If you would like to discuss your legal rights with a specialist family lawyer, we can help. We offer a no-obligation, confidential fixed fee initial appointment of up to one hour at which time we can provide tailored legal advice to your circumstances.

A recent study has revealed a trend that reports of domestic violence rose over the last three World Cups. It is worrying news that something that should bring our nation together, can divide and cause families to suffer. It is predicted that there will be an increase in domestic incidents during this tournament and police forces around the country have been preparing.

Domestic abuse is never acceptable. We can provide advice both in the context of formally ending your marriage, but also if you need the protection of the Family court from abuse, or perhaps need the intervention of the Family court to protect the children in your family.

Call Sharon for an appointment with experienced expert family solicitor, David Lago, on 01630 652405.

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Divorce – End The Blame Game

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Is It Time For No Fault Divorce In England and Wales?

Of course, we are talking about the appeal of Mrs Owens before the Supreme Court in May this year against the decision that she be denied a divorce further to her divorce petition in 2015 citing the fact of her husband’s unreasonable behaviour.

In order to obtain a divorce in England and Wales an applicant (until recently known as the ‘petitioner’) must demonstrate to the Family court that the marriage has irretrievably broken down, and she/he does that by relying on 1 of 5 facts.

In a nutshell, these are adultery, desertion, 2 years’ separation with consent, 5 years’ separation or, in the case of Mrs Owens and countless other applicants, so-called unreasonable behaviour.

The situation as it stands is prescribed by the Matrimonial Causes Act 1973, and guides the Family court that it can only determine that the marriage has irretrievably broken down, on an unreasonable behaviour application for divorce, if the applicant satisfies the court that the respondent spouse has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent (MCA 1973, s. 1(2)).

In Mrs Owens case back in 2017, the court was not so satisfied, and her divorce was refused by Judge Robin Toulson QC. Mrs Owens took her case to the Court of Appeal, to save herself from being trapped in what she described as a loveless marriage until 2020. The decision was upheld by the Court of Appeal, with the President of the Family Division, Sir James Munby, stating that the appeal judges were not prepared to interfere with the earlier decision.

We of course know that to establish unreasonable behaviour draws on both subjective and objective elements. The applicant must believe that the behaviour constitutes unreasonable behaviour to this standard but, with the word ‘reasonably’, comes a requirement for objectivity.

In Mrs Owens case, it was clear that the court expected a certain standard of ‘bad behaviour’ to have been reached to enable a successful petition and, even though Mrs Owens believed her husband’s behaviour was sufficiently bad to justify a divorce, the court decided that it was not.

So what’s left for Mrs Owens to do in this situation? She took her case to the Supreme Court and this was heard in May this year. If she is unsuccessful, she will have to wait until 2020 to rely on 5 years’ separation to obtain her divorce. All the while she continues to live separate and apart from her husband, whilst being denied the financial remedy she would have access to within divorce proceedings.

Resolution: First for Family Law, intervened in the proceedings, and are using the Owens decision to advocate ‘No Fault Divorce’. Nigel Shepherd, Resolution’s immediate past Chair, has said, “Owens v Owens must be the spark that ignites a fundamental change in our divorce law”.

Onions & Davies Solicitors is championing the cause and our family lawyers believe that it’s time for change.

Currently, if parties wish to divorce within 2 years, Resolution lawyers repeatedly find themselves in the paradox of helping their clients find a constructive, child-focused resolution to the end of the marriage, whilst having to justify the reason for the divorce to the court. It doesn’t take much to see the merit in a system which takes the blame away.

However, even if Mrs Owens is successful, this will not ‘end the blame game’. We need Parliament for that. It’s just a step closer in the effort towards a system of no-fault divorce – what Resolution is calling ‘a better way’.

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