The new ‘no fault divorce’ came into effect on the 6 April 2022. The divorce process is now much simpler, less acrimonious and can be done jointly with both parties. Once you have initiated the divorce process, there is then a minimum waiting of time of 26 weeks until you can complete your divorce. You may be wondering what happens with the children during and after the divorce process, the position legally is set out below.
Will the online divorce application address arrangements for our child(ren)? Divorce, matrimonial finances and children are three separate and distinct areas in the eyes of the law. Before you commence the divorce proceedings, it is advisable that you first discuss arrangements for your finances and arrangements for your children post-divorce. As you are/were married, you will both continue to have equal and shared parental responsibility for the child(ren) so any important decisions relating to the child(ren) should be made with the agreement of both of you. As the new divorce process is now less stressful and non-confrontation, you may find that the only difficulties you now face with your divorce and separation are within the arrangements or your finances and children post-divorce.
What if we can agree the arrangements for our child(ren)? If you can directly agree arrangements with the other parent, you can have an informal ‘parenting agreement’ verbally or in writing between yourselves. A template for an informal and written ‘parenting plan’ can be accessed on the Cafcass website at https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-together/parenting-plan/. Alternatively, and particularly if either parent is concerned that the other may renege on the agreement on a later date in the future, we can assist you to formalise your agreement by drafting a consent order for both of you to sign which reflects your agreement in writing. The Court can then make this a binding Order of the Court called a ‘Child Arrangements Order’ which neither party can depart from without either agreeing to change the Order and lodging a further ‘Child Arrangements Order’ by consent with the Court or if matters are disputed, applying to the Court for the Court to make a decision on the variation of the ‘Child Arrangements Order’.
What if we cannot agree the arrangements for our child(ren)? Essentially, neither parent will be able to dictate to the other important decision relating to the child(ren) and neither parent will be able to decide where the child(ren) live or the frequency and location of contact without a Court Order or the agreement of the other parent. There are several ways that you can address disputes relating to arrangements for children and these are addressed below.
1. Mediation Initially, you may want to try mediation, which is a voluntary process where you both agree to meet with an independent and professionally trained mediator to assist you with working out the arrangements for your child(ren). The benefits of mediation are that it is less acrimonious and less expensive than attending Court. The mediator should also be able assist you both to ensure that any agreement you make becomes a legally binding ‘Child Arrangements Order’. You can find further information on the Resolution website at https://resolution.org.uk/looking-for-help/splitting-up/your-process-options-for-divorce-and-dissolution/family-mediation/.
2. Solicitor Correspondence One difficulty with mediation is that whilst the mediator will guide you on the process, the mediator is impartial and cannot advise you individually on how best to achieve your individual desired outcome when the other party is not in agreement with your proposal. As an alternative, you can obtain advice from a solicitor outside of mediation or in conjunction with mediation and put forward your desired outcome with the assistance of a solicitor. The solicitor will be able to provide you with independent advice that is in your best interest and will be very knowledgeable of the Courts approach to child arrangements. The benefits of solicitor correspondence is it is more cost effective that attending Court and may assist you further than mediation will when the other parent is reluctant to agree to your proposals or adhere to arrangements that you have agreed whilst attending mediation. In addition, the solicitor can assist you to ensure that any agreement you make becomes a legally binding ‘Child Arrangements Order’.
3. Collaborative Law Collaborative Law is another process that you can both agree to undertake. Collaborative Law involves you both having your own individual lawyers to advise your separately but with transparency with the other parent and their solicitor. All four of you (you, your solicitor, the other parent and their solicitor) can then create agreed agendas and come together to attend a number of meetings to come to a mutually beneficial agreement that caters to both of your desired outcomes. The benefits of collaborative law is that it is less stressful and less expensive than attending Court and also less confrontational. Crucially, you do not end up with an Order that has been imposed upon you that does not take into account your individual circumstances. You will both be able to obtain advice on how to individually achieve your desired outcomes but you and your solicitors will still be working together. The solicitors will then both assist you to ensure that any agreement you make becomes a legally binding ‘Child Arrangements Order’.
4. Litigation – Obtaining a Child Arrangements Order from the Court If you are still unable to agree arrangements for your child(ren) with the assistance of a mediator and with the assistance of solicitors, it may be necessary for you to issue Court proceedings. The Court can make various orders to decide who the chil(ren) live with, spend time with, where they go to school, stop the other parent from doing something you do not agree with or to determine a specific issue that is in dispute relating to the children. When making any decision relating to the child(ren), the Court is less concerned about either parents’ wants or desires and will Order what is in the child(ren)’s best interests. The Court will also not make any Order unless it is in the interests of the child(ren) to do so. For the duration of the Court proceedings, the child(ren)’s welfare will be of paramount consideration to the Court. Accordingly, the Court must consider the ‘welfare checklist’ before any decision is made. The ‘welfare checklist’ is as follows:
• The ascertainable wishes and feelings of the child(ren) concerned considered in the light of their age and understanding.
• Their physical, emotional and educational needs.
• The likely effect on them of any change in circumstances.
• Their age, sex, background and any characteristics which the court considers relevant.
• Any harm which the child(ren) have suffered or are at risk of suffering including violence and, for example, impairment suffered from seeing or hearing the ill-treatment of another child or parent.
• How capable each of the parents and any other person in relation to who the Court considers the question to be relevant, is, of meeting the child(ren)’s needs. Litigation can be stressful and can take a long time until arrangements are finalised. The benefits of litigation are that there will be a strict timetable, there will be readymade rules and a process that the Court will follow, the decision of the Court will bring finality and there can also be penalties imposed on any parent that does not comply with Court directions and Orders.
5. Arbitration Arbitration is an alternative to litigation and is effectively a private Court hearing. When you issue an application to Court for a Child Arrangements Order, you have no choice of Court, Judge or date and time of the Court Hearings. Arbitration is a process which is very similar to Court but different in many ways. Instead of attending multiple Court Hearings with very little control, you may decide to appoint an independent Arbitrator, appointed and chosen by you and the other parent, to provide a binding decision, known as an ‘award’. The benefits of arbitration is that arbitration is more flexible, more cost-effective and less time consuming than attending Court and the decision of the Arbitrator is binding.