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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 24626
Experience:  Senior Partner at Berkson Wallace
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My husband and I are separating and I’d like some advice

Customer Question

My husband and I are separating and I’d like some advice regarding child arrangements
JA: Where are you? It matters because laws vary by location.
Customer: essex
JA: What steps have you taken so far?
Customer: Not many, I have a child from a previous relationship and we share two children. I would like to leave this house and move in with my mum who lives under an hour away. We don’t own the house, his uncle does and we just live here. I would like to move the children to a new school near my mums house but I’m told he won’t allow that
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: He is mentally abusing me and telling me I’m depressed because I don’t want to be with him anymore
Submitted: 20 days ago.
Category: Family Law
Expert:  Stuart J replied 20 days ago.

Hello. Thank you for the question. It is my pleasure to assist you with this matter today.

Please bear with me, I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

How old are the children? and how far away is this new school?

Customer: replied 20 days ago.
My eldest is 9 and she is from a previous relationship. Our shared daughter is 6 and our youngest is 3 months. I don’t drive so won’t be able to commute to the old school. The new school will be around an hour away. My husband currently works in the area where my mum lives
Expert:  Stuart J replied 19 days ago.

You might want to start by getting the divorce process underway.

Provided that at least one of the people wishing to get divorced lives in England, then getting divorced in England (& Wales) is infinitely a do-it-yourself job.  (I am not familiar with the system in Scotland)

Save yourself a whole load of money: the government website have a do-it-yourself guide

https://www.gov.uk/divorce

Although you can agree finances between you, it doesn’t draw a line under it unless you have a financial order

https://www.gov.uk/money-property-when-relationship-ends

And if have children under 18, and you cannot agree who they live with and who sees who and when, then you need a child arrangement order (which includes Specific Issue Orders:

To confirm that something can happen

and a Prohibited Steps Orders

To stop something happening

https://www.gov.uk/looking-after-children-divorce

In the United Kingdom, we do not have “irreconcilable differences”.  That is a thing in the United States for the time being at least.  The rules are changing here shortly to get rid of the following 5 grounds of divorce and to get rid of the fault issue but that has yet to be enacted.  To be honest, in my opinion, it’s going to make very little difference because the big arguments are over finance and children not the actual divorce itself.

It doesn’t matter who divorces who or why, the financial issues are exactly the same.  The court has not apportioned blame with regard to the division of marital finances for many years.

Grounds for getting divorced are:

1          The couple have lived part 2 years or more but less than 5 years and they both consent to the divorce.

2          The couple have lived apart for 5 years or more, regardless of whether they both consent or not.

3          Desertion.  Not common.

4          Adultery.  Very difficult to prove unless there is unequivocal evidence or an admission.

5          Unreasonable behaviour.  Most common and relatively easily to put together a petition on these grounds.  For example:

A spouse wants an unreasonable amount of sex/never once it.
Lack of personal hygiene/obsessive personal hygiene.

Obsessively tidy/extremely messy and untidy.

Gambles to excess/it’s tightfisted with money.

Never interacts with spouse or children/obsessive with children.

Violent or bullying or intimidating.

Excess alcohol.

Lots of grounds.

Please note that a legal separation is not the first step or precursor to a divorce.  It is virtually the same process but it doesn't dissolve the marriage.  However it draws a line under the relationship formally.  The difference between a legal separation and divorce is basically that you cannot get remarried again.  The reason you would have a legal separation, rather than a divorce is you can get divorced, for religious reasons for example.

You need a Child arrangement order to sort out matters for the children, which I mentioned earlier.

Fortunately, there is a lot of information on the Internet about Child Arrangement orders and the government have actually produced a guide on the subject which is here.

https://www.gov.uk/looking-after-children-divorce

The different types of Child Arrangement order are:

1              A Contact Order which specifies when parent sees a child, it is no longer called "access".

2              A Residence Order to determine who the child lives with, it is no longer called "custody"

3              A Prohibited Steps Order to prevent a parent doing something with the child such as moving away either in this country miles away or taking the child to another country.  Particularly relevant if there is a chance that the parent would go to another country and never return.  The parent wishing to prevent the move would have to convince the court why it’s not in the best interest of the child to move.  Friends, support, school et cetera et cetera all taken into account.

A Prohibited Steps Order is to prevent child Abduction and it’s one of the few areas of law for which legal aid is sometimes still available.  It’s often therefore worth seeing a solicitor.

4              A Specific Issue Order to allow a parent to do something specific with the child such as moving away to another part of the country or indeed to another country.  .  The parent wishing to move would have to prove why it’s not in the best interest of the child to move..  Friends, support, school et cetera et cetera all taken into account.  It would also encompass things such as changing school if the parents cannot agree, changing the child's name, and anything other specific.

The courts will not get involved in a Contact or Residence order unless the couple have been to mediation first.  So the couple would have to try mediation even if it subsequently fails and the matter proceeds to court.

If you want any certainty with regard to the children going to a different school then you need a specific issue order because you don’t get consent of the court to move the children, he will either apply for a Prohibited Steps Order to stop you moving or you will apply for a Specific As you Order himself to compel you to bring them back.

What is most important is what is in the best interest of the children.  That would take into account changes of school, friends, et cetera et cetera.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards