Families and divorce FAQs

Here we have the answers to many frequently asked questions relating to divorce and family law. Our expert solicitors are here to help.

Sally Powell, Bishop's Stortford
Sally Powell, family law specialist in Bishops Stortford

Adoption law FAQs

What is adoption?

Adoption is the legal process through which parental responsibility for a child is transferred to an adoptive parent. The adoptive parents take on all parental rights and responsibilities for the child, such as where they live, the schools they attend and medical matters. When a child is adopted, the biological parents give up their parental responsibility for the child.

How does the adoption process work?

There are two routes to adopting a child within the UK:

  • Through an adoption agency via your local council
  • Through a voluntary adoption agency

The first step in the adoption process is to contact the adoption agency and provide them with any information they require. Next, the agency will arrange to meet you to assess your suitability. If you are successful at this stage, and want to move forward, the agency will send you an application form.

Who can adopt a child?

You may be eligible to adopt a child if you:

• Are over the age of 21

• Have lived in the UK, Channel Islands or Isle of Man for at least 12 months

• Meet the local authority’s selection criteria. 

You need to prove that you can meet the needs of the child. There's no universal set of adoption requirements, but there are steps prospective adoptive parents can take to demonstrate your suitability.

Child custody FAQs

What is a parenting plan?

A parenting plan is an agreement between seperated or divorced parents about how to raise their children. Both parents need to agree to the plan. A parenting plan can be changed at any time, for example as the children grow up, provided both parents agree. 

(A parenting plan is a voluntary agreement between parents and does not involve a court process).

Parenting Plan template is available from the Children and Family Court Advisory and Support Service (CAFCASS).

Learn more - co-parenting 

Who has parental responsibility during a divorce or separation?

If you have parental responsibility before you separate from or divorce your child’s parent, you will not lose it because of the separation or divorce. 

If you were married when your child was born, both you and your spouse automatically have parental responsibility.  A mother has parental responsibility from the birth of the child regardless of whether she is married to the father.  If the father is not married to the mother when the child is born, they do not automatically have parental responsibility but will acquire it if their name is on the child’s birth certificate, if they have a Court Order granting it or if they have a legally binding agreement with the mother.

Who has to make child maintenance payments?

Regardless of who has parental responsibility, the parent with whom the child spends less time  is required to contribute financially to their children’s maintenance. If you are the parent with whom your child spends more time (perhaps the child is living primarily with you and spending time with the other parent) and you are not receiving  child maintenance, a solicitor can advise you about how to secure the payments. If the child or children spend equal time with both parents, there may be no payment due.

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What does a co-parenting agreement cover?

A co-parenting agreement covers:

  • Who the child will live with
  • Who will have parental responsibility
  • Who will be named on the birth certificate
  • How much contact the child will have with the other parent 
  • Decision making once the child is born e.g. where they will go to school
  • Consent to treatment and storage and what happens if there is a dispute?

Collaborative divorce FAQs

What does collaborative divorce mean?

Collaborative means working together but in the context of family law, it means more.  Collaborative law is a particular way of both parties and their solicitors (who must be specially trained in Collaborative law) working together towards a resolution of points of dispute between them.  It is an alternative to going to court, and couples who choose collaborative divorce make a commitment not to go to court.

How does collaborative divorce work?

Collaborative divorce begins with you, your partner and your respective solicitors signing a 'participation agreement’. A participation agreement is a legally binding document to say that you will all work together and come to a final agreement on your divorce. Your solicitors will work as a team to guide you through discussions (called four-way meetings), giving you advice, making suggestions, testing options and steering you towards an agreement. Other expert advisers might also be able to attend the meeting to give extra assistance.

Divorce arbitration FAQs

What is family law arbitration?

Arbitration is a way of resolving dispute – whether in relation to finances or arrangements for children.  An independent arbitrator (like a judge) is appointed jointly by the parties to adjudicate on the points in dispute.  The arbitrator’s decision/adjudication is called an ‘award’, which will be binding on the parties. 

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How does the family law arbitration process work?

Once parties have agreed to enter into arbitration, the first step will be to agree an arbitrator. An arbitrator is a family lawyer (a specialist family law solicitor or barrister) who is qualified to sit as an arbitrator. The arbitrator will set the steps to be taken and the timetable.  Both parties may have solicitors to advise them during the process and either a solicitor or a barrister to represent them at the arbitration (akin to a court hearing before the arbitrator).

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When is arbitration suitable?

Families can agree to use arbitration from the outset or even after court proceedings have started.  It can be used to resolve disputes about finances and child arrangements.

What are the advantages of arbitration?

Appointing an arbitrator has a number of advantages over relying on the court procedure. It is often much speedier than the court process, as appointments are listed at the participants’ convenience not dependent on the court’s timetabling powers.

The process is private and confidential, whereas the court system is becoming increasingly transparent.

Parties get the benefit of a specialist arbitrator who is reserved just to deal with their case. At court, numerous hearings are listed for one judge to deal with each day, meaning the judge doesn’t always have much time to hear everything.  Also, by selecting the arbitrator, the parties know they will have a judge who is a specialist in that area of law.

Arbitration also provides continuity as the arbitrator remains on the case until it reaches a resolution so they are able to have more personal involvement in the case and can find a bespoke solution for the family.

An arbitrator’s decision is binding so the parties know they will have closure to their dispute.

 

Domestic violence FAQs

What is domestic violence?

Domestic violence or domestic abuse can include any incident of threatening behaviour or violence and is a criminal offence. Types of domestic violence include:

  • Physical abuse/violence
  • Emotional abuse
  • Financial abuse/control
  • Psychological abuse
  • Sexual abuse.

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What is Controlling or Coercive Behaviour?

Controlling or coercive behaviour in intimate or familial relationships is a criminal offence where the behaviour has a serious effect on the victim. Examples of controlling or coercive behaviour can include acts of domestic violence, but also includes:

  • Isolating a person from their friends or family
  • Depriving them of this basic needs
  • Monitoring their time
  • Monitoring them via online communication tools
  • Taking control over aspects of their everyday life
  • Repeatedly putting them down
  • Enforcing rules and activity which humiliates and degrades

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What is an Occupation Order?

An occupation order is a type of order that the court can make, that regulates who is entitled to live in a property. An occupation order can:

  • Exclude someone from the home altogether,
  • Restrict the right of someone to live in the home
  • Regulate how the home is used – setting out who can use which parts of the home and when
  • Define who is responsible to maintain the home
  • Who should pay rent, mortgage instalments, other outgoings and bills
  • Who should keep the home and contents secure.

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What is a Non-Molestation Order?

A non-molestation order prohibits someone from behaving in a certain way towards another person. Each non-molestation order will be tailored to address individual circumstances. If you have applied for a non-molestation order it can, among other things:

  • Forbid violence against you
  • Prohibit someone coming within specified distance of you, your home or your place of work
  • Prohibit someone from communicating with you, except through your solicitors.

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Ending a civil partnership FAQs

How much does it cost to end a civil partnership?

The court charges a fee of £593 for an application to dissolve (end) a civil partnership.  

  • If you then reach an agreement between you as to the financial arrangements upon dissolution (i.e. how you will divide your assets and any ongoing financial support between you), the charge for the court approving your agreement to make it binding is £53 
  • If you are unable to reach an agreement as to your financial arrangements, you can apply for the court to adjudicate. The court fee to start that process is £275

The above court fees are payable whether you use a solicitor or handle the dissolution yourself.  Legal fees cover the cost of things like the solicitor or mediator’s time advising you, preparing documents and representing you at Court (if required). 

Depending on your individual circumstances, you may have to pay additional Court fees or be entitled to fee exemptions.

Guide to civil partnerships

Family mediation FAQs

What is mediation?

Mediation is when an independent and professionally trained mediator helps you work out an agreement with your former partner about issues such as: 

  • Childcare arrangements
  • Finances- including pensions, dividing your assets and financial support
  • Houses and property – such as your family home, or buy to let investments 

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How does divorce or family law mediation work?

In the first session known as a MIAM (Mediation Information and Assessment Meeting) you will have an opportunity to meet the mediator individually and the process will be explained to you. After you have both attended an individual meeting, there will be a first joint meeting with the mediator.  They will then get you and your partner to talk in a constructive way, and encourage you to start looking at options and ideas. In this way they are often able to help you find a workable solution, and one that can become part of a legal document.

A mediator's role is not to advise the parties, and you may benefit from independent legal advice alongside mediation.

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Fertility law FAQs

What is legal parenthood?

Under English and Welsh law, a child can only have two legal parents, known as legal parenthood. The individual who gave birth to the child will automatically be the legal parent, regardless of whether they are the biological parent of the child or not. If the individual who gave birth to the child is married or in a civil partnership then their partner will become the other legal parent; unless they do not consent to the treatment that gave rise to the conception.

What is parental responsibility?

It is important to be aware that parental responsibility is a separate issue from legal parenthood. When undertaking treatment, it is important to consider parental responsibility and how to obtain it. Parental responsibility covers the legal rights, responsibilities and authority a person has for a child, such as making decisions about their care and upbringing.

What does a co-parenting agreement cover?

A co-parenting agreement covers:

  • Who the child will live with
  • Who will have parental responsibility
  • Who will be named on the birth certificate
  • How much contact the child will have with the other parent 
  • Decision making once the child is born e.g. where they will go to school
  • Consent to treatment and storage and what happens if there is a dispute?

How can fertility treatment impact employment rights?

Whilst undergoing fertility treatment, you will not be entitled to statutory time off.  However, the Advisory, Conciliation and Arbitration Service (ACAS) guidance states that employers should treat appointments related to IVF in the same way as any other medical appointment, under the terms and conditions of the contract of employment. If the implantation is successful, you will be entitled to maternity leave. You should consult your employment contract to find out on what terms. 

What is a preconception agreement?

A document which sets out how the arrangement will work between your known donor, or co-parent, before you conceive. Please note, a preconception agreement cannot be used in cases of surrogacy, where different rules apply. Preconception agreements are not legally binding, however they are still worthwhile as they can help you plan out some of the more difficult details of the arrangement such as:

  • Who will the child live with and spend time with
  • Who will have financial responsibility
  • Where will the conception take place, at home or at a clinic
  • Set out any issues such as responsibility for schooling or medical decisions
  • Who will be the legal parents of the child after fertility treatment?

Prenuptial agreements FAQs

What is a prenuptial agreement?

A prenuptial agreement is a legal document that sets out who gets what if you get divorced or dissolve your civil partnership. Your prenuptial agreement should be signed at least 28 days before the date of your marriage/civil partnership.

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What can be included in a prenuptial agreement?

Examples of assets a prenuptial agreement covers are:

  • Your finances – including pensions, investments and financial support
  • Houses and property – such as your family home, or buy-to-let investments
  • Your business interests – if you own your own business or shares
  • Valuable possessions – such as cars, antiques and family heirlooms.

Are prenuptial agreements legally enforceable?

A prenuptial agreement is not strictly binding in the same way as a commercial contract. However a prenuptial agreement is likely to be upheld if it is entered into freely by both parties and both parties understand what they signing up to, unless the court thinks it would be unfair to hold the parties to the agreement.  A prenuptial agreement which has been prepared in the right way is increasingly likely to be enforced by the family courts. 

Postnuptial agreement FAQs

What is a post nuptial agreement?

A post nuptial agreement is a legal document which sets out how a couple’s assets should be divided if they get divorced. Couples can enter into a post nuptial agreement any time after they have married or entered into a civil partnership.

What can be included in a post nuptial agreement?

Post nuptial agreements usually cover things like:

  • Finances, including financial support
  • Pensions, investments and other significant assets
  • Business interests.

Separation FAQs

What is a deed of separation?

A deed of separation is a legal agreement that formalises the terms of your separation. They are usually used when parties separate but do not intend to divorce immediately.  A solicitor can help you make a deed of separation that covers important issues, such as your finances, property and children. You should be aware that separation agreements are not strictly binding in the same way as a commercial agreement, but a court may uphold their terms.  You should take advice from a solicitor if you think a separation agreement might be for you.

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What is a judicial separation?

A judicial separation is similar to a divorce but leaves you legally married. It is a formal separation which goes through the courts. A solicitor can help you apply for a judicial separation.

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Surrogacy law FAQs

Is surrogacy legal in the UK?

It is legal to have a child through a surrogate in England and Wales. However you cannot profit from advertising or arranging a surrogate.  You should not pay someone to be your surrogate, but you may be expected to cover reasonable expenses of the surrogate such as: treatment costs, legal costs and any loss of earnings.

What are my employment rights as a surrogate or intended parent?

Surrogate mothers will have the right to 52 weeks maternity leave and have the option to return to their job after their maternity leave. Intended parents may have the right to adoption leave or parental leave, but only one parent will be able to take adoption leave. If there are two parents, then the other may be entitled to paternity leave.

Who are the legal parents of a child born through a surrogate?

When the child is born, under English and Welsh law the surrogate will automatically be the legal mother of the child. If the surrogate is married or in a civil partnership, then their partner will be the other parent of the child initially. 

The intended parents will need to apply for a parental order within six months of the child being born, in order to become the legal parents of the child. Married or civil partnership couples are able to apply for a parental order. For single parents the law is a little more complex. 

It can take several months for a parental order to be granted and the intended parents must meet the various criteria which include:

  • Being biologically related to the child (and if a couple, a least one must be child’s biological parent)
  • Have the child living with you
  • Reside permanently in England or Wales.

When the parental order has been granted by the court, the child’s birth certificate will be re-issued with the intended parents recorded as the legal parents. 

Unmarried couples FAQs

What is a cohabitation agreement?

A cohabitation agreement is formal written agreement that describes what how an unmarried couple will regulate their financial arrangements while living together and what the arrangements would be if they were to separate. The agreement makes sorting such issues out more straightforward at the time of separation. It can cover practical issues such as:

  • Finances and financial support
  • Ownership of the family home
  • Childcare arrangements
  • Changes to your tenancy
  • Division of contents such as furniture.

There is no legal concept of a ‘common law marriage.’  Living together without being married or in a civil partnership does not give you any particular rights around finances, property and children.  A cohabitation can go some way to protecting you.  If you think a cohabitation agreement could be for you, talk to one of our friendly family law solicitors.

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What is TOLATA?

TOLATA is the acronym for the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), the Act under which the Courts have the power to resolve property and land ownership disputes. If you are living together when you are not married or in a civil partnership, this is the law that will be applied to your claims to the property (or a share of the property) in which you live, for example.  A family law solicitor can help you make a claim or represent you if your partner makes a claim against you. You can settle claims outside of Court.

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