Some of the reasons why January is ‘Divorce Month’

Too much time together at Christmas

Already fractured relationships come under intense pressure during the festive period with many employers operating a ‘Christmas shutdown’ for up to two weeks. This means couples will spend a great deal more time in one another’s company than they usually do, where minor irritants that might normally be overlooked can easily reach fever pitch.

Irritants are under the microscope

While it’s not unusual for couples to complain that their partner leaves the toilet seat up, or doesn’t help with the chores, this can really come under the microscope when they are together twenty-four hours a day for a couple of weeks, as opposed to just evenings and weekends. When you go to work and have your normal routine, you get a chance to calm down and by the time you see your partner again the issue is forgotten about; but this may not be the case when there is no escape!

Financial Pressure

It is a fact that financial pressure is a leading cause of conflict in relationships, and families now feel more obligated than ever to ‘put on a good show’ at Christmas. The expense of attending social events, buying gifts for extended family and the purchase of premium food for guests means that couples can often be at odds about how much of their household budget should be allocated to the festive season.

Waiting until ‘after Christmas’

Couples often realise in November or December that they want to end their marriage but feel that doing so close to Christmas would cause too much anguish for their children and wider family. With most people returning to work between the 2nd-6th January, and requiring a few days to get the paperwork in order – it is no surprise that the documents are commonly filed in January.

Brand new Data Revealed

LPS Solicitors Nationwide has surveyed a sample of Brits, asking which of their partner’s habits has annoyed them the most over the Christmas period, and the results might surprise you!

Asked to select which habits had annoyed them this Christmas, a staggering 44.05% of respondents cited ‘being on their phone too much’ as something that had annoyed them, with 25.45% advising this was the number one most annoying habit of all options given!

Coming in a close second, was ‘not helping with the household chores’ with 42.29% of respondents citing this as an irritant, and 16.07% indicating this had annoyed them the most.

Azhar Hussain, Head of Family Law here at LPS Solicitors says, “In recent years, we have seen a significant uplift in the number of divorce cases we handle where modern technology, gaming and social media are referenced in legal documents as a contributing factor in the breakdown of relationships.

Of course, when petitioning to divorce, we have to prove your marriage has broken down irretrievably and we do this by relying one or more of the five qualifying facts. While you cannot divorce your spouse for being on their phone too much, we often see these issues feature as a precursor to adultery and unreasonable behaviour, which are legitimate grounds for divorce”

Almost 1 in 5 have considered leaving their partner during Christmas 2019

Perhaps the most extraordinary data obtained from our research is that 17.72% of our respondents answered ‘Yes’ when asked “Have you considered leaving your partner during Christmas 2019?” Of our sample 69.33% of respondents were married, and 30.67% cohabiting.

If we can help you with Divorce Month 2019, why not get in touch with our experienced team who can help?

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Yes. To put it quite bluntly.

This issue remains to be underreported, however, there has been positive progress to raise awareness and support those struggling. It is very important that countries, communities and individuals work effectively to assist and put in place safeguards, preventative and protective measures.

Okay to start with, let me give you some figures from the Forced Marriage Unit (FMU) Statistics 2018 document (released on 24/05/2019).
Did you know:

• The FMU handles between 1,200-1,400 cases per year;
• In 2018, the FMU gave advice and provided support in 1,764 cases;
• In 2018, 75% of the cases involved women;
• Forced marriage is not a problem specific to one country or culture and the FMU has dealt with cases relating to over 110 countries.

These statistics are readily available online should you want to drill down into the figures further.

WHAT IS A FORCED MARRIAGE?
The Anti-Social Behaviour, Crime & Policing Act 2014 made forced marriage a criminal offence. This type of issue typically refers to when an individual(s) causes a person to enter into a marriage without their free and full consent. The ‘force’ can be through threats, psychological coercion, physical harm (s.63A(6), FLA 1996) and financial abuse.

WHAT IS CLASSED AS A MARRIAGE?
In line with s.63S, FLA 1996, this is a religious or civil ceremony. Remember, this applies whether or not it is legally binding.

PUBLICITY OF THE ISSUE
Thankfully, there has been a substantial increase in raising awareness of the issue and this publicity has led to greater responsiveness and increased contact with the FMU. The FMU has advised on £1,764 cases in 2018.

Further, the media have highlighted two cases where individuals have been prosecuted in respect of this matter. I will mention the following:

• This case referred to a mother from Birmingham being found guilty of forcing her daughter to travel to Pakistan and forcing her to marry an individual nearly twice her age;
• There is also the publicised case of a couple being found guilty of misleading their daughter and travelling to Bangladesh to attempt to force her to marry an individual.

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Yes. To put it quite bluntly.

This issue remains to be underreported, however, there has been positive progress to raise awareness and support those struggling.  It is very important that countries, communities and individuals work effectively to assist and put in place safeguards, preventative and protective measures.

Okay to start with, let me give you some figures from the Forced Marriage Unit (FMU) Statistics 2018 document (released on 24/05/2019).     

Did you know:

• The FMU handles between 1,200-1,400 cases per year;
• In 2018, the FMU gave advice and provided support in 1,764 cases;
• In 2018, 75% of the cases involved women;
• Forced marriage is not a problem specific to one country or culture and the FMU has dealt with cases relating to over 110 countries.

These statistics are readily available online should you want to drill down into the figures further.

WHAT IS A FORCED MARRIAGE?

The Anti-Social Behaviour, Crime & Policing Act 2014 made forced marriage a criminal offence. This type of issue typically refers to when an individual(s) causes a person to enter into a marriage without their free and full consent. The ‘force’ can be through threats, psychological coercion, physical harm (s.63A(6), FLA 1996) and financial abuse.

WHAT IS CLASSED AS A MARRIAGE?

In line with s.63S, FLA 1996, this is a religious or civil ceremony. Remember, this applies whether or not it is legally binding.

PUBLICITY OF THE ISSUE

Thankfully, there has been a substantial increase in raising awareness of the issue and this publicity has led to greater responsiveness and increased contact with the FMU. The FMU has advised on £1,764 cases in 2018. 

Further, the media have highlighted two cases where individuals have been prosecuted in respect of this matter.  I will mention the following:

• This case referred to a mother from Birmingham being found guilty of forcing her daughter to travel to Pakistan and forcing her to marry an individual nearly twice her age;
• There is also the publicised case of a couple being found guilty of misleading their daughter and travelling to Bangladesh to attempt to force her to marry an individual.  

I am a Solicitor-Advocate experienced in criminal law and in my experience I can tell you that the sentences were seen as being far more serious than many members of public envisaged. This, of course, does not apply as a blanket statement to the entire public.   I guess more awareness will need to be raised in respect of the sentencing consequences individuals can face. This is surely a great deterrent in itself.

WHAT ARE THE SENTENCES FOR FORCING SOMEONE TO MARRY?

If you force someone to marry, it could result in a sentence of up to 7 years imprisonment and if you breach a Forced Marriage Protection Order (FMPO) it can result in a sentence of up to 5 years imprisonment. Remember, that a failure to comply with requirements or terms of an FMPO granted by the Family Court, is a criminal offence and can result in a sentence of up to 5 years imprisonment.

WHAT IF I AM A VICTIM AND AM SCARED OF REPERCUSSIONS?

There are excellent organisations (such as the FMU) which can assist you every step of the way in order to best protect you during this difficult time period. There is also the support of the Police should you feel at the risk of immediate danger. The legal sector is also primed to help you. Further, it is also brilliant to note, the government have introduced lifelong anonymity for victims forced to marry and this will encourage victims to come forth and seek the support they deserve.

The FMU can be reached on fmu@fco.gov.uk or telephone: 020 7008 0151.

WHAT IS A FORCED MARRIAGE PROTECTION ORDER?

The Forced Marriage (Civil Protection) Act 2007 introduced provisions into s.1(2) FLA 1996. This aims to protect individuals from being forced into marriage, any attempts at being forced and also provides assistance if an individual has already been forced into a marriage. These can be applied for by the victim, a relevant third-party or anybody granted leave from the court to make the application.

This article has set out to provide you with some initial information in respect of Forced Marriages and is drafted by our very own Head of Family Department, Azhar Hussain. If you would like to have a confidential, free and non-obligatory chat, please feel free to contact LPS Solicitors on 08009961807

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These devastating words will sadly be heard by some parents this year.

The sheer utterance of these words is upsetting, however, sadly, for many parents, these words transpire into reality. The reality of having to spend these holidays without your children is no less then horrifying and has a clearly overwhelming and negative impact on you and your children.

I do not by any means refer to valid cases where there are justified concerns and risk indicators that may prevent a parent from having contact with their children. This article is not focusing on those types of cases. Instead, I am focusing on the cases where parents are unable to reach an agreement – often due to one parent exerting an unacceptable level of control over arrangements.

Sadly, I have seen many a case where a party is unable to set aside personal issues and as a result, I find that those suffering most are the innocent children. It seems that often in the heat of the moment some individuals begin to confuse issues and seek to vent their unhappiness through the child arrangements.  This is unacceptable. If the children’s welfare is not affected by such issues then they must be set aside and resolved in the applicable legal framework (i.e. divorce and separation proceedings). I refer you to my divorce guide named “OMG! Best Divorce Ever”…Said NO ONE EVER! – Divorce 101 – Back to Basic Guide – which may assist.

I guess, I would be naïve not to appreciate that complex personal argument can have a resounding effect on the parties, however, it is absolutely vital that such issues are placed aside in order to ensure the children’s welfare is placed front and center. This is a must and the legal sector should be doing more to promote an amicable approach that focuses on this principle.

Key Principles To Remember

It is at this stage that I will highlight a few key aspects of the law that may provide ‘food for thought’ in relation to individuals who are improperly preventing appropriate child arrangements. I would strongly suggest that independent legal advice is sought to deal with such matters on the basis of your specific circumstances.

Nevertheless, generally, I point out the following:

The Paramountcy Principle

It is vital to remember that the court’s paramount consideration is the children’s welfare (s1(1) Children Act 1989.  Any further considerations to be raised by the parties are secondary. This point needs to be emphasized to the parties and clearly understood, especially if you are a parent preventing contact without appropriate reasoning. It is important for such a parent to stop and consider the negative impact that this may be having on the children and the consequences you may face due to your actions. It is vital to understand that the risk of harm or that actual harm to the children’s welfare can arise from unduly preventing contact with the other parent. This is surely something that both parties seek to avoid at all costs.

Parental Responsibility

Parental Responsibility is defined as ‘…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’

Where applicable, this affords both parents the equal right to make fundamental decisions about the children’s property and welfare (including but not limited to religious upbringing, accommodation, education, and medical treatment, etc). It is possible for more than one person to have PR for a child at any time and each person with PR can act alone in meeting their responsibility (section 2(5) and (7), CA 1989). It should be known that the resident parent (I use the term loosely) has the right to independent action in relation to day to day matters affecting the children.  These day to day actions can be discharged independently without agreement or notification.

However, remember, the Court has specifically confirmed: “where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child” (Re W (Direct Contact) [2012]). Therefore, where both parties hold parental responsibility, there is a level of equality that should not simply be overridden at the whim of one parent who feels they can exert an inappropriate level of control over arrangements. This is a flawed approach and will cause difficulties for this parent and more importantly for the children.

The ‘Welfare Checklist’

The Children Act 1989 provides a list of considerations for the judge who has to decide the case, which helps guide them in making a decision. I could write an entire article on these aspects alone but in the meantime have applied some simple thoughts below.

• the wishes and feelings of the child concerned
• the child’s physical, emotional and educational needs
• the likely effect on the child if circumstances changed as a result of the court’s decision
• the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
• any harm the child has suffered or may be at risk of suffering
• the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
• the powers available to the court

It is very important to appreciate that children’s wishes and feelings will be accounted for within any proceedings so long as they can be ascertained. This will clearly not be possible if your children are very young but as they develop their views will be considered with the level of importance they deserve.  It will be important for the court to ascertain any such views given by children are their own as the whole legal system is thankfully becoming more alert to parental alienation. The consequences of preventing contact during such periods and exerting parental alienation are very serious and the impact on the children can be very much devastating. The simple point is that children should not be fuelled with any negative perspectives you may have in respect of the other parent.  It is not outside the realms of understanding to appreciate the importance of children having the input of both parents during this festive holiday period. Surely, where appropriate,  the bonds and memories forged must be based on a relationship with both parents as opposed to just the one?

It must also be borne in mind, as a non-resident parent (i.e. one with whom the children do not live), you do not automatically have a special legal right to see the children during this festive period. However, this being said, I am not stating you do not have the right. The point is that the law does not contain provisions for separated parents ordering them to have specified contact for such holiday periods. I mean with all due respect, this would clearly be overstepping the mark as the day to day realities of life means that such arrangements cannot always be fixed for set periods and it would also take away the level of control that parents are entitled to in coming together to establish arrangements for their children.  Therefore, you may find yourself considering, how do I deal with such an issue.

How to Resolve Child Arrangements Disputes

This being said, arrangements cannot always be agreed between the parties. If this is the case, you should consider court proceedings as the last course of action.  I would suggest the following steps and along the way,  if you consider you need legal representation you can find the individual best suited to assist you.

Where possible, it would make sense to try and agree to matters amicably as this would at the very least narrow down the issues in dispute and your legal representatives can then focus on these aspects. This approach should surely save time, costs and unnecessary disputes. I have drafted some tips for parents in reaching an agreement and this document is named Christmas Contact Tips. Thereafter, if unsuccessful, it would be worthwhile to consider mediation. Wherein a trained independent individual can assist you and your ex-partner to attempt to reach an agreement. If at any stage you can reach an agreement and seek a court order to ensure all concerned are protected you can normally instruct a solicitor on a fixed-fee basis to draft a consent order and have this approved by the court.

If all other avenues fail and court proceedings are necessary, you should approach these with the view that both parties being involved within the children’s lives is important to promote their welfare. These proceedings are referred to as Child Arrangement Order proceedings and I have drafted an extensive guide on this named Child Arrangement Order Guide. And, yes, before I receive this feedback,  I know it is child arrangements (with an ‘s’ at the end) order, however, I have noted a lot of laypeople searching online using the terms child arrangement orders. 

It is also fundamentally important, be it that the parties reach an agreement by consent or through proceedings, that the child arrangement order is expansive and covers all aspects of child arrangements. It is important that you do not drag yourselves through constant proceedings where in fact a measured approach from a good legal representative can deal with matters collectively. For example, the focus may right now be on Christmas but what about Mothers Day, Father’s Day, Birthdays, Easter etc. These matters can be dealt with and planned ahead of time and without the need for further disputes, costs or proceedings.

I do not by any means consider that me writing this article will ‘wave a magic wand’ and lead to your issues being resolved. I simply seem to add some input to this most concerning issue and possibly if this even helps one individual then it is mission accomplished for me.  

Merry Christmas & Happy New Year to All

This general article has been drafted by our Head of Family Dept, Azhar Hussain. The aim is to provide some general information in respect of the issue highlighted. If you have any questions or would like to have a free no-obligation chat, please feel free to contact 08009961807. If you think content can assist others, please share.

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INTRODUCTION

Well, there is no doubt that these types of situations can be very challenging and difficult for the family unit. Therefore, I have prepared this Child Arrangement Order Guide and this will be freely available to assist those in need. I mean in my years of experience, I have seen first-hand the substantial impact these types of matters can have on the parties, their children and wider family. It is quite frankly heart-wrenching to see individuals having to progress through emotionally driven disputes relating to children. I have the first-hand experience of such matters derived from my personal life. This has very much tailored my approach to handling and assisting with such matters. I consider it vital that the parties try to avoid unnecessary costs, disputes, and proceedings. If legal proceedings are absolutely necessary, I consider it vital for legal representatives to have attempted to narrow down the issues in dispute and seek to settle the matters without delay and unnecessary costs. I guess this would be a common decency on part of the legal representatives who have been entrusted with the future of a family.

WHAT IS PARENTAL RESPONSIBILITY?

This is defined as having ‘…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property…’.

The PR will not entitle one parent to exhibit undue control mechanisms over child arrangements. This is inappropriate and can be considered to negatively harm the children’s welfare. It should be known that the resident parent has the right to independent action in relation to day to day matters affecting the children.  These day to day actions can be discharged independently without agreement or notification. This, of course, does NOT apply to major issues, i.e. planned medical treatment (beyond routine appointments), living arrangements during holidays and events, selection of schools, application for authorised absence from school, immunisations, etc.  It is not the case that either parent can simply dictate these matters without reference to the other.

WHAT ARE CHILD ARRANGEMENT ORDERS?

It is related to exercising Parental Responsibility. These disputes commonly arise around disputes between separating parents and the exercise of rights and responsibilities towards their children.

These orders commonly deal with issues such as:

• whom the child is to live, spend time or otherwise have contact;
• when the child is to live, spend time or otherwise have contact with any person (i.e. your partner)

There are also additional aspects of Prohibited Steps Orders and Specific Issue Orders.

The Prohibited Steps Orders prevent a parent from undertaking certain steps, i.e. preventing a parent from removing a child from the jurisdiction, from a local area or specific place of education.

The Specific Issues Order seeks to determine a particular issue of a dispute regarding the child, i.e. if the child should change their name, attend a specific place of education or relocating permanently.

ARE YOU AUTOMATICALLY ELIGIBLE TO MAKE THIS APPLICATION?

There are particular individuals automatically entitled to apply for child arrangement orders.

They are as follows:

• Parents or Guardians/Special Guardians;
• Step-Parents (where they hold Parental Responsibility or the child is treated as a child of the family);
• Spouse/Civil Partner where it pertains to a child of the family;
• If you are a person with the consent of all those who hold Parental Responsibility;
• If you are a relative with whom the child has lived for one year;
• If you are the person with whom the child has lived for a period of at least 3 years – this must not have begun more than 5 years before or ended 3 months prior to the application;
• If you have a Child Arrangement Order naming you as an individual with whom the child shall live;
• If you are a person with the consent of the local authority with care;
• If you are a local authority foster parent (dependant on further conditions)

WHAT IF YOU ARE NOT AUTOMATICALLY ELIGIBLE?

Well, this does not mean you cannot apply for a Child Arrangement Order. The application is commonly referred to as seeking leave to apply. It simply means that you would need to apply for permission to be entitled to apply. This type of issue commonly arises for Grandparents who do not fall into the aforementioned categories.

WHAT IS A MIAM?

Time permitting, I will be drafting a separate article on MIAMs and Alternative Dispute Resolution (‘ADR’).

MIAM is an acronym for Mediation and Information Assessment Meetings. In most cases, save for those where exemptions apply (i.e. domestic violence).

There is a legal requirement to attend a MIAM before proceeding with a formal application. Where possible and safe to do so, the court expects separated parents to try to resolve disagreements about child arrangements outside of the court system and to be flexible about changes to agreed child arrangements. Within such meeting(s) an independent mediator will open dialogue between the parties to establish if the situation can be resolved without legal proceedings. The prospect of legal proceedings should a last resort. I consider it imperative to consider alternative dispute resolution to try to resolve or at the very least narrow down issues of dispute. Invariably, it is not out of the realms of possibilities to agree to certain aspects in most cases.

It is a pointless exercise for the parties to have a barrage of disputes without focusing on those that they can reach agreement upon and thereafter shifting focus to those they cannot. It is very much possible to find common ground when considering the child’s welfare as the paramount concern.

You can use the following services to access help and support to resolve a dispute about child arrangements. For information about family mediation and to find your nearest mediation service, see: https://www.familymediationcouncil.org.uk/

WHAT ARE THE BENEFITS OF A CHILD ARRANGEMENT ORDER?

The main focus of these proceedings and paramount consideration for the Court is the child’s welfare. Therefore, in my experience, well-ordered child arrangements can provide stability for not only the parties but also the children. Any unspecified and unbalanced arrangements can lead to a negative impact on the children. This approach assists in preventing disputes between the parties and should provide reasoning to prevent any one party from applying disproportionate and inappropriate controls over the arrangements.

The Court can provide for the following types of stable arrangements:

• Direct Contact. These arrangements are where the parent will directly have contact with the child and this can be for a set period of time or overnight;
• Indirect Contact (i.e. Skype, Facetime, Watsapp, etc). These types of orders commonly arise where there is a potential risk identified in respect of the child’s wellbeing;
• Supervised Contact. If the Court considers there is a risk to the child’s welfare, they can order for contact to take place in a supervised contact center. It is possible for the parties to enter through separate entrances/exits and not have to engage with each other during this process.

Remember, unless there are concerns for the child’s welfare. The Court will normally consider it beneficial for the child to have both parents involved within their lives. It is also possible to have equality in status by seeking for shared living arrangements. This promotes a consistent continuation of family life and reassures the stability needed by children whilst maintaining the involvement of both parents. In the event that there are intractable disputes, such a shared living arrangement can be ordered by the court to impress upon you the importance of parental equality.

Further, if you have a Child Arrangement Order confirming you to be a person with whom the children live then you have the right to take the child abroad for up to one month without the other party’s consent.  If you not named as a person with whom the child shall live, you do not have the same rights and would have to reach an agreement or consider a Specific Issues Order.

HOW DOES THE COURT DECIDE WHAT HAPPENS?

The paramount concern for the Court is the child’s welfare.

The Children Act 1989 provides a list of considerations for the judge who has to decide the case, which help guide them in making a decision:

• the wishes and feelings of the child concerned;
• the child’s physical, emotional and educational needs;
• the likely effect on the child if circumstances changed;
• the child’s age, sex, background and any other characteristics relevant;
• any harm the child has suffered/may be at risk of suffering;
• the capability of the child’s parents in meeting the child’s needs, and
• the powers available to the court.

The court must also be satisfied that making an order is better for the child than not making an order at all.

WHEN DO CHILD ARRANGEMENT ORDERS COME TO AN END?

If the parents cohabit for a continuous six-month period the Child Arrangement Order will automatically end. Child Arrangement Orders ordering with whom and when a child is to live with a person normally continue until the child is aged 18 years.  If the order states with whom and when a child is to spend time with another it normally remains until the age of 16 years (and exceptionally until 18 years of age).

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You can call LPS to discuss your claims with an expert industrial disease lawyer. The firm provides no obligation advice with a hassle free claims process. You don’t need to come to court every day. Your solicitor will take care of your claims process and collect evidence that the court requires for giving judgment in your favour.

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In my capacity as Head of Family for LPS Solicitors, I am often questioned about alternatives to divorce and these questions commonly arise in initial meeting with clients. Due to the resounding impact of separation, I have a policy of discussing such matters at the offset. This allows me the opportunity to broach the sometimes-difficult conversation of reconciliation. I mean, I for one, have learned, that you should never say never, and all bases should be explained, especially when clients are suffering the high tides of emotion attached to the breakdown.

I mean, let us be honest, the breakdown of a relationship can be one of the most difficult times in an individual’s life and the fiery flames of the dispute are often frustrated by the toll of bearing the impact that can fall upon you and family. Sadly, these problems can often also be exasperated by personal issues, such as, you not wanting to proceed with a divorce due to religious or cultural issues.

These difficulties can be remedied by way of considering a judicial separation

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