To divorce in the UK you must prove that your marriage has broken down irretrievably.
We’re often asked what are ‘normal’ arrangements for children when a couple separate. In short, there isn’t a simple answer that applies to all. Every family is different, and any arrangements for children will be specific to that family. It doesn’t have to end up in court though!
Here we explain various routes to avoid a fight in court.
Things to consider
It’s understandable that as parents you want to see as much of your children as possible after a split. The child’s welfare is however paramount. The courts often refer to the child’s ‘best interests’ and this would be at the heart of any decision made by a judge (if court proceedings become necessary). So, this viewpoint needs to be considered from the outset of any discussions.
Talk about it yourselves
Generally, the people that know children best are their parents. If a couple can separate their own needs (to be with the children), and what’s in the children’s best interests, then an agreed route through discussion is without question the best route. Unfortunately, being able to do that is often difficult in the heat of a separation.
This is a great option for those wishing to discuss smaller as well as bigger issues. It is the chance to sit down with an independent trained mediator, to have a discussion about the various options for the children. The mediator will ensure that both parties have a fair chance to speak and will encourage you both to come to an agreement.
No order principle
If you are able to resolve the situation either between yourselves or through mediation, the agreement you reach won’t be 100% binding (but this shouldn’t put you off these options). The ‘law’ says that if an agreement is made between two adults, then the court shouldn’t make a court order in respect of the children.
Ultimately, use the court if there is a problem that can’t be resolved. But, if there isn’t a problem, there isn’t a need for a court application/order.
If you attend mediation, you will have a ‘memorandum of understanding’ which will cover everything that has been agreed at mediation for you both to follow. If you have resolved it amicably, many people choose to write the agreement down so that there is a basis of agreement for everyone to follow. Hence the phrase, the ‘no order principle’ (ie there is an agreement and no need therefore for a court order as well).
This is viewed by many as the absolute last resort. For some, it’s the only way of establishing contact or putting arrangements in place for the children. The court rules now say that you must attend a mediation appointment before you can proceed with an application to the court.
The court process isn’t the last chance to reach an amicable agreement, judges generally encourage a couple to come to an agreement (ie rather than the court deciding for them).
The court usually provides a mediation appointment at the first hearing to see if an agreement can be reached with their assistance. It often can.
Things aren’t always simple, and agreement isn’t always reached. Absolute worse case scenario is that a judge will make a final decision on what happens to the children, and both parents will be bound by that decision. Failing to comply with a court order can result in fines and even imprisonment!