Separation

Sorry but I am not quite clear on the nature of your query.

I assume you are married.

Are you looking for advice on residence and contact?

Let me know.

Yes I am married and am looking for advice on residence and contact with my son.  Is it my sons choice in terms of contact?

When a court decides issues relating to children the welfare of the child is of paramount importance.

I suspect in your case that your husband has no objection to your son living with you. If that is so then there is no real need to obtain a residence order. If there is likely to be a dispute on this point let me know and I can go into further details.

So far as contact is concerned the welfare principle will still apply but the court will assume that contact between a child and parent is beneficial.

As your son is 13 in my opinion a judge would take his views into account provided he (the judge) was satisfied that those views were genuinely held.

If your son does not want to see his father then your husband could make an application to the court but judges know that children will do what they want and  court orders will not change that.

I was involved once in a case of disputed contact involving children a little younger that your son. The case was set down for 3 days. The judge saw the children in private. They told him they did not want to see their mother. The judge then in effect told all the legal teams there was nothing he could do.

Having said that although I do not know your full circumstances children should be encouraged to have contact with the non-resident parent. The issues that divide the parents should not affect the relationship between children and their parents.

Thanks for your response.  If I decide to formalise the separation, do I have to have a deed of separation in terms of arrangements with my son?  Will I need to engage a solicitor if we cannot decide on contact with my son.  What are the benefits of going through the separation as opposed to divorce straight off?

It is possible to have a written separation agreement which sets out the terms of that separation and any agreements that have been reached.

Usually this is prepared by solicitors - each party being represented by their own solicitor.

While not strictly binding on the court in later divorce proceedings, if each party had independent advice prior to the completion of the agreement then the court is unlikely to upset it's contents.

However although agreements relating to children can be contained in the agreement it will be impossible to oust the jurisdiction of the court in this respect and the court will remain the final arbiter for all matters to do with the children.

You do not have to seek a divorce immediately but I usually make two points clear to my clients.

1. If the marriage has truly broken down and there is no prospect of reconciliation then there is little point in keeping it alive. From a practical point of view once you have been married for one year divorce is available on demand in this jurisdiction as long as you fit your case into established rules. This is not hard to achieve.

2. The divorce courts have wide powers to deal with all outstanding issues between the parties.

We have reached a stage in the separation now that we are not going to get back together.  I have an issue with where my 13 year old son will stay.  Since I left the house, he has been told no-one can take him out of the house and since he is with his father, he assumes that his father will be staying in the house.  I have told my husband I want the house as well.  Is it better to engage a collaborative lawyer in this case or not?

Dear Jade

I note that you have asked about using the collaborative law process.  You may be aware that the collaborative process aims to seek a fair solution to issues between parties.  The process aims to be less stressful, improves communication, promotes respect and focuses on the future.  Generally the process is better for the children as it allows parents to communicate directly and resolve issues without the children becoming embroiled in adult arguements. The process is a very mature and direct way of reaching agreement about your seperation whcih would include dicussion about the possibility of divorce, finances and arangements for your son.  The issues between you are worked out through a series of face to face meetings with you each being supported by your own collaborative lawyer. 

I am a collaborative lawyer and would be happy to see you to explain the process further and provide you with some initial advise.  A full list of collaborative lawyers can aslo be found on the resolution website.  i can be contacted at Band Hatton Solicitors on 02476632121

email - dawn.mobbs@bandhatton.co.uk

Web site -www.bandhatton.co.uk

Kind Regards

Dawn Mobbs

Dawn,

Thank you for you detailed response and offer of help.  I am based in London and it would not be practical for me to make use of your services.  I have had a look at the resolution website which has some good pointers and addresses of lawyers I can consult.  I also need to find someone who can offer me some initial free advice before I can proceed and engage.

With Collaborative process - do both parties have to engage a solicitor?

Yes - the process does involve specially trained lawyers.

For more information please see:-

http://www.lawsociety.org.uk/choosingandusing/howtosolvedisputes/familylaw.page