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UKfamsol
UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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I have been separated from my wife for over 2years and had

Resolved Question:

I have been separated from my wife for over 2years and had my son every weekend. She is unable to cope took herself into hospital with mental issues and was living with a partner involved with drugs and violence. My son is now living with me. I have changed his school, doctor etc. I need to get a divorce and child residency. It is unlikely that she will co-operate with the latter. What I need to know is can she be issued with divorce papers without mention of the child residency and where to I stand at the moment I have the backing of schools and social services. I do have parental responsibility, thank you.
Submitted: 3 years ago.
Category: Family Law
Expert:  UKfamsol replied 3 years ago.
Hello and thanks for your question.

There are two issues here 1) how to get a divorce and 2) whether you need a court order concerning your son

1) divorce

Here is a blank divorce petition, and notes to help you complete it.

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d008-eng.pdf

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d008-notes-eng.pdf

The grounds for a divorce are the irretrievable breakdown of the marriage - but you have to specify on the petition whether that's due to the respodent's behaviour, their adultery, the fact that you've been separated for 2 years and they consent to a divirce, or you have been separated for 5 years regardless of whether they consent.

If you are sure that your wife will consent to a divorce on the acknowledgment form, then you can divorce her on the basis that you have been separated for 2 years, and she consents. Otherwise, you can base your divorce on her behaviour.

The petition requires you to state the dates of birth of any children, and whether they are children of both of you or not - but no other information, so there's no need to specify that your son lives with you on the petition.

The court fee to issue your divorce petition is £410.

2)whether you need a court order concerning your son.

The Children Act refers to the "no order" proncile - this means that the court will only make an order concerning a child if there is a need for it - in other words, if the parents when they split up, agree which of them a child is to live with, no court order is needed.

If your wife does not agree that your son should continue to live with you, then you will need to apply for a child arrangement order that specifies that your son is to live with you, and your argument to the court will be that this would be in the child's best interests and for the child's welfare, for all the reasons you state above.

The form you need is C100, here:-

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c100-eng.pdf

The court now requires parties to have attempted mediation before it will consider an application to court. Here's where to find a local family mediator:-

http://www.familymediationcouncil.org.uk/

I strongly advise you to get some face-to-face legal advice as well, Most solicitors will give a free intial interview. Here's where to find a specialist family law solicitor:

http://www.resolution.org.uk/findamember/

I hope this helps and I wish you the best of luck.


Thanks and best wishes...

Customer: replied 3 years ago.
I need to know where I stand now should my wife decides she wants our son before any court proceedings thankyou
Expert:  UKfamsol replied 3 years ago.
If your wife decides she wants your son back, and in your view that would be contrary to his welfare, then you need to make an applicatiuon to court for a court order as quickly as possible. The court will still want to see that you have attempted mediation so even if you know in advance that it won't work, you still need to set up an appointment to see a mediator FIRST - then once the mediator has confirmed in writing that mediation has failed, you can make your application to court.

I do hope this helps and I do wish you the best of luck.


Thanks and best wishes..
Customer: replied 3 years ago.
I can't afford solicitors am I wasting my money trying to do an online diy divorce ( does she need to assist in starting the procedure)She doesn't have a permanent address at the moment (can possibly contact her through relatives).if I do use solicitors how much do you think it will cost thank you.
Expert:  UKfamsol replied 3 years ago.
Hi again

Whether you go the online route or not is up to you - personally I don't have much confidence in these companies because I've had clients come to me after their petition was rejected by the court because the online cheapo company had made basic legal mistakes in the way that the petition had been completed, so the petitin had to be redone which meant a further court fee, and of course our fees as well. Better to have it done correctly first time round. Where I work we charge £500 plus vat @ 20% of £100 plus the court fee of £410, which totals £1,010 altogether. But contact a few firms, see what they charge and how confident they make you feel that they know what they are doing, and pick one. Here's a good place to start:

http://www.resolution.org.uk/findamember/

Your wife does not need to assist in starting the divorce process off - but she will need to be served with the divorce papers once the divorce petition has been issued by the court, so you will need an address for her - ideally her residential address. And if you are divorcing her on the basis that you have been separated two years, then she will need to confirm on the acknowledgement form that she consents to a divorce - if there's any doubt that she will consent, then base your petition in her behaviour. Don't put both in the divorce petition, or the court will return your petition.

I really do hope this helps - I'd be grateful if you would now kindly accept my answer so that I can be credited for my time.

Thanks and best wishes..

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