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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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Hello, I have been separated for almost 3 years, my ex

Customer Question

Hello,
I have been separated for almost 3 years, my ex will not divorce me so I have decided to wait until the 5 year point and then apply in the courts for divorce. I have had no contact with him for about 2 years now.
My question is if I were to fall pregnant with someone else's child in the next 2 years, what rights would my ex husband have to that child, because we are technically still legally married?
Also, what would the birth fathers rights be to that child compared to my ex? would he (the birth father) need to sign any papers saying he is the official father or would the birth certificate be satisfactory evidence or proof to give him custody if something happened to me in the future?
if you need any further information or have any questions, please let me know.
Many thanks
Anthea
Submitted: 3 years ago.
Category: Family Law
Expert:  UKfamsol replied 3 years ago.
Hello and thank for your question.

a) re the divorce - you do not need to wait until you have been separated for 5 years. You can file your divorce now, on the basis of your husband's behaviour. This can be anything such as not speaking, constant rows, refusing to socialise with you. You only need to put in about 3 examples in your divorce petition eg 1) what was the FIRST thing that happened (that he did) that made you realise there were problems in your marriage 2) what was the WORST thing that happened (that he did) and 3) what was the LAST thing that happened (that he did) - the straw that broke the camel's back, and that made you realise that the marriage was over and you wanted a divorce.

b) if you have a child with a new partner. If no father is named on the birth certificate, then there is a presumption that the husband of the mother is the father of the child. But you can rebut that presumption if you have been living apart from your husband for x months or years - clearly after such a long period apart it could not be his. If he insisted that it was, you could ask him to provide a DNA sample which compared with a sample from you and the baby would show that he was not the father. I cannot think why a man separated from his wife would want to claim that a child he could not have fathered was his. So - I do not think that your estranged husband would have any rights with respect to a child you have by another man. If you put the name of the real father on the birth certificate when you register the birth of the child, then there will be a presumption that that man is the father, which will override the usual presumption that the husband is the father of any of his wife's children. If the real father denies that he is eg if you were to claim child support from him, then again by DNA testing, you will be able to prove that he is.

You are not obliged to put the name of the father on the birth certicate. That makes no difference to his obligation to pay child maintenance nor to the right of the child to have contact with its father (but contact only in a way that is safe, and appropriate for that particular child).

Fathers do not automatically have parental responsibilty. Mothers do.Putting the father's name on the birth certificate is one way that fathers get to have parental responsibilty (another way is to be married to the mother of their children).Parental responsibilty is largely symbolic, but it does mean that you have to consult the father if he has parental resposnibility on all major decisions in a child 's life eg changing their name, or changing school, or wanting to emigrate. Without the consent of the father, you need permission from the court to do whatever it is.

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

Thanks and best wishes....











Customer: replied 3 years ago.

Hello,

Thanks for the long reply! so much detail :)

With the divorce situation, he has refused to sign the paperwork unless I pay him a large sum of money or admit I had an affair (which I didnt). I left him because he unfortunately loved alcohol more than me in the end. I was under the impression we would both need to sign the paperwork until the 5 year point and then I can apply on my own and will no longer need his signature. Is this not the case?

With the birth certificate situation, that makes a lot of sense and is so good to know. My ex is a nightmare, he used to do and say mean things just to get back at me and hurt me. I dont trust him and wouldnt put anything past him. He knew then how much having a child having meant to me, if there were any possible way he could take that away from me, he would do everything in his power to do it. He's extremely angry and bitter and just not a nice person really.

but its good to know where I stand and the rights I have as a future mother and that he will have no right to my children in the future.

Expert:  UKfamsol replied 3 years ago.
Hi again

You can get divorced even if he refuses to sign the paperwork. The way it works is that you file your divorce petition at court & the court sends the petition to your husband with an acknowledgement form to sign & return to court, to show the court that he has received the papers. But if he refuses to sign then after a few weeks you can ask the court bailiff (or a private process server) to serve the papers on him in person - then it doesn't matter whether he signs or not, because the court bailiff (or the process server) will sign a statement for the court as proof that he's received the papers.

The court will want proof that he's received the papers (ie his signature or the signature of the court bailiff) even if you base your petition on 5 years separation - unless you can convince the court that you have made every effort to find his address without success. That is - proof that he has RECEIVED the papers - NOT that he has consented to the divorce. In the UK 99% of all divorces are uncontested, regardless of what A says about B in the petition.

Thanks for your kind remarks!

I'd be grateful if you'd now kindly rate and accept my answer.

best wishes....









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Expert:  UKfamsol replied 3 years ago.
thanks so much for your prompt payment AND bonus - very much appreciated!