Children in divorce

Child custody and access to children is not an automatic part of the divorce process in the UK. There are three distinct aspects to a divorce and, to the extent that they each exist in any particular case, they are three separate and distinct issues. They are:-

(1) The divorce itself which is the process which culminates in decree absolute. It is decree absolute which dissolves the marriage and enables both former spouses to remarry if they wish. (2) There is the process of settling the financial issues which arise from the marriage.  (3) Finally, there are issues about children such as with whom they will live, when and how often the other parent will have contact etc.

Now, it is important to understand that in divorce law in England the courts do NOT routinely make orders about children. Many people seem to believe that upon divorce the courts automatically make decisions about issues such as the custody of children in divorce. They do not. The vast majority of divorces do not result in any court order in respect of the children of the marriage.

Now, there are often difficulties about children when a marriage is breaking down. Perhaps one parent will not let the other see the children or one parent wants to take the children on holiday but the other will not permit it etc. This is common. However, what happens in almost all cases is that when the divorce has gone through, decree absolute has been obtained and financial issues have been settled once for all, mother and father come to their own arrangements about where the children will live, what contact they have with the other parent etc. The court does not intervene. The divorcing couple do this themselves. The vast majority of divorcing couples sort out the future child care arrangements between themselves. This may not happen immediately. Sometimes it takes time but it is what happens in by far the greater number of cases.

In general the courts only intervene to decide any issue relating to a child if someone specifically makes an application to the court to do so. This incurs paying a separate court fee for the children’s proceedings and that application commences proceedings which are wholly separate from the divorce. They should only ever be regarded as a last resort. There are many reasons why court proceedings about children are unsatisfactory and leave one or both parents feeling hard done by. They are not routine in divorce proceedings. It is important to understand this.

If you need to know more about proceedings involving the custody of children and related issues such as access to children then please read on.


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