Raleys Solicitors

Question: I am a married father of three young children. My wife and I separated two weeks ago when I left the matrimonial home after a domestic argument. My wife has been to see a solicitor and has alleged that I had been violent towards her. I have been told that due to these allegations it may affect me having contact with my children, is this true?

Raleys Solicitors’ reply : The issue of domestic violence is taken very seriously by the court, in particular in this contents when children are involved.

In May 2008 a practice direction was issued on this very subject which has, to some extent changed the procedure within the courts to ensure that where an allegation of domestic violence is made the courts consider it in full when trying to determine whether contact should take place between a child and the perpetrator of the violence.

In this case, as always, it is best to try and reach an agreement amicably. However, if your wife is denying you contact with the children then you need to make an application to the courts for a defined contact order. You are entitled to do this as the children’s father and such an application would be made in your local county court. However, you should be aware that upon applying for your contact order it may well be that your wife raises the issue that you have been violent towards her. Due to the recent practice direction, the District Judge is obliged to identify at the earliest opportunity the factual and welfare issues involved with this allegation. Therefore, it is likely that a finding of fact hearing will be ordered which will mean that both you and your wife will have to file written statements of the alleged violence involved. A hearing will then take place which will mean that you will both have to give evidence so that the Judge can determine whether or not there is any truth in your wife’s allegations. Clearly if the Judge decides that there has been no violence then contact can take place between you and the children and it is crucial that a child remains in contact with their absent parent. However, if the Judge does decide that you have been violent towards your wife then this may well directly impact upon your contact with the children. The key issue is whether or not the violence that has occurred had any effect on the children. For example, if the violence formed part of a one off incident which was not witnessed by the children then it is less likely to have an impact on contact. However, if there was a series of violent incidents and this was witnessed by the children then it is far more likely to have an impact. However, it does not mean that the perpetrator of the violence will be denied contact with their children. For example, it may well be that the court will want the perpetrator to seek advice or treatment as to their anger management issues. This may well be a precondition before contact can take place. If an individual can show that they have the capacity for change and will behave appropriately, contact may take place in the future. The key issue is whether or not the court is satisfied that the physical and emotional safety of the child can be secured. If so then beneficial and meaningful contact can take place in the future.

In some cases it may well be that direct contact is not in the children’s best interests. In cases such as this indirect contact may be ordered. Indirect contact would include letters, emails and perhaps even telephone calls. This may be a way to build up to direct contact overtime. However, it would be for the perpetrator of the violence to work very hard to show that the trust can be rebuilt in the future and past mistakes can be addressed so that contact can be about the children in the future and not used as a means to address past difficulties between the parties.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: My ex-husband and I have two boys together. When we initially separated we had a big battle through the Court in relation to him seeing them. In the end, I was given custody and he was allowed regular contact which is still continuing. I now want to emigrate with the children and my new husband to his native America, am I within my rights to do this even if my ex objects?

Raleys Solicitors’ Reply: No, I am afraid that you are not automatically entitled to move the children abroad. The Children Act 1989 confirms that where a residence order is in force with respect to a child then no person may remove that child from the United Kingdom without either the written consent of every person with parental responsibility for that child or, the leave of the court. You say that you were given ‘custody’ of the children which is the old word for residence and, as you were married to your ex he will have parental responsibility for the boys. As a result, if he objects to you taking the children to live abroad, as seems likely from what you say, your only option will be to make an application to the court for permission to take them to America.

On a more positive note, the current view of the court is that permission should not be withheld, unless there is a compelling reason to do so, where the decision of the person to emigrate is reasonable. Courts are mindful that if a reasonable application is denied this may cause bitterness on the part of the family who have been refused and that this, in turn, may negatively impact on the children concerned.

When deciding your case, the court must have regard to the welfare of the children. Indeed, this will be of paramount concern. They will need to know about every aspect of your proposed move such as why you want to move, where you plan to live and with whom. They will also want a clear picture as to where the children will continue their education.

Whilst there is no presumption in favour of you because you have a residence order, your reasonable proposals will carry great weight. However, the court will be very concerned as to the effect on your two boys resulting from the reduction of contact with your ex. They will not tolerate an application from someone who they perceive is simply trying to frustrate or prevent contact by moving away. For this reason they will want to check that your reasons for moving are genuine and they will expect proposals as to how the boy’s contact can continue with your ex. Clearly, as you propose to move so far away, face to face contact of the kind that is taking place now will be significantly restricted. You therefore need to ensure that you make sensible and realistic proposals as to how the boys can sustain the relationship with their father. This could be via a combination of e-mail, webcam and telephone contact. It will also be important to recognise that your ex will perhaps wish to travel to you to see the boys or organise for them to travel back to the UK to him, if appropriate.

Any reputable specialist Family Solicitor should be able to advise you fully on the particular circumstances of your case and guide you through any application to the Court, if it becomes necessary. Whatever happens may we wish you all the best for the future.

If you have a family law question, ask Raleys Solicitors by e-mailing family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: I am 55 years of age and a widow.  Over the years I have managed to accumulate substantial assets.  I have in recent years met a man and, after two years, he has proposed to me.  I am worried as to how this will affect me financially should I accept the proposal and what would happen if the marriage breaks down.  In reality, I am concerned about how best to protect my assets.

Raleys Solicitors’ Reply:  The starting point is to understand the implications of marrying your partner.  A marriage is a legally binding contract entered into by the parties who wish to commit themselves to a future together.  Therefore it follows that, as a consequence of that marriage, the parties’ financial affairs are, in effect,  merged.  If the marriage subsequently breaks down and divorce proceedings follow then the court may have to re-distribute the assets of the marriage taking various factors into account.  This may mean that the court decides the assets should be shared regardless of who owned them in the first place.  Therefore the best way to protect assets is to enter into a pre-nuptial agreement.  However, before doing so, it is crucial to understand the position of the court in relation to such contracts.

Historically the position has been that pre-nuptial agreements are contrary to public policy.  This was first decided nearly 80 years ago in the case of Hyman v Hyman (1929) AC 601.  In this case it was felt that such agreements undermine the institution of marriage because they contemplate divorce and, as a matter of policy, the parties cannot decide the law does not apply to them.  This argument seems to have remained valid over the years and it is only recently that the courts have started to recognise the value of pre-nuptial agreements.  Therefore it may well be the best course of action available to this individual.

The important thing is to make sure that enough is done to give the pre-nuptial agreement evidential value.  Unfortunately, a practitioner would not be able to guarantee that the court would take the pre-nuptial agreement into account, but it could certainly be seen as a persuasive factor if all the requirements are met.  These are as follows:

1. Each party must take independent legal advice.  The court will be careful to ensure that each party has entered into the contract fully understanding its terms and implications.  What is particularly important is that neither individual felt forced by the other party to enter into the agreement.

1. It is also crucial that each party exchanges full financial disclosure.  This includes full details of their financial circumstances at the time the contract is entered into, supported by documentary evidence.  The details of such financial circumstances should be attached to the agreement itself.  Again this will help to show that the parties have entered into the agreement will full knowledge of all the facts and by understanding the other party’s financial position.  This  may later help to demonstrate to the court that the agreement should be upheld.

1. The agreed terms will need to be recorded in a well drafted deed.  It would also be wise for the parties to ensure that each clause is  separately enforceable so that if, at a later stage, some of the clauses are held invalid, the other clauses will remain.  This is because some clauses may be irrelevant at a later stage if there is a significant change of circumstances.

As already stated it may well be that the court will not recognise and enforce the pre-nuptial agreement reached.  However, provided that the above terms are satisfied and the parties enter into the agreement sufficiently before the marriage, then the pre-nuptial agreement may well have enough evidential value to persuade the court that it should be upheld.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice.  Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Question: I have recently split up from my girlfriend. We have two little girls and I want to make sure I see them regularly but my ex doesn’t want me to. What are my options?

Raleys Solicitors’ Reply: This is regrettably a common problem but often it can be resolved without the need for court action. The key is, following the separation, to let the dust settle and then approach the problem in a calm and rational manner. It is often the case that, when a couple first separate, they allow their anger to become more important than what is best for the children. Therefore, it is important to remember that things can get easier as time goes by.
The crucial thing to remember is that, apart from in the most exceptional of circumstances, it is imperative that the children maintain contact with both sides of the family. It is for this reason that the courts often view a father’s application to see their children very sympathetically.

The first step is to try and speak to your partner and put forward some reasonable proposals as to when you would like to see the children. Whilst it is important that both parties remain flexible, it is better to have a fixed time for contact each week. This will ensure the children have a routine and allow both you and your ex girlfriend to plan your personal time around the arrangements. If your ex girlfriend will not speak to you then consider consulting a solicitor who will write to her on your behalf setting out your proposals and suggesting that she seek independent legal advice. Hopefully this will lead to an agreement which works for you both. A solicitor may also suggest that you and your ex girlfriend attend mediation together. This would allow you both to meet with a mediator who would help you to iron out any communication problems and reach a mutually acceptable agreement. This process can often be quicker and cheaper than going to court.

If you and your partner can not agree the contact arrangements then, as a father, you have the right to apply to the court for a contact order. The order, if appropriate, will set out clearly when you should have contact and can, if necessary, detail who is to collect and return the children.

You also need to be aware of a concept known as parental responsibility.  This is a legal expression used to outline the rights, duties and responsibilities which a parent has in relation to his or her children.  Your ex girlfriend has parental responsibility automatically by virtue of giving birth to the children.  A married father also has parental responsibility but an unmarried father such as yourself may not have parental responsibility automatically, unless your children were born after 1 December 2003 and you were named on their birth certificate. If you do not have parental responsibility, you can acquire it either by entering into a written parental responsibility agreement with your ex girlfriend or by court order.

If you have or acquire parental responsibility in respect of your children then your ex girlfriend would have to consult you regarding all the major issues in the children’s life.  Such matters would include religious upbringing, medical treatment and education.  In addition it would prohibit her from changing the children’s surname or removing them permanently from this country without your knowledge or consent.  Furthermore you would have the same status as her in relation to attending school open evenings and obtaining school reports etc. Basically your status as the children’s father would be formally recognised by you having or acquiring parental responsibility.  However, you would not be able to exercise this so as to interfere with the daily care administered by your ex girlfriend to the children.

If you have a query about family law, email Raleys Solicitors on family@raleys.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. Raleys Solicitors cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.