Is there such thing as an amicable separation?

It has recently been reported in the Daily Mail that comedian Jason Manford and his wife Catherine have agreed to go their separate ways after having been married for 6 years with 3 children.

The article refers to the fact that it has been an amicable split and they actually decided to separate a year ago after simply “growing apart” but have remained friends. Indeed as a matrimonial solicitor dealing with the breakdown of marriages and divorce on a daily basis, I have come across quite a few ‘amicable divorces’ over the years. The most amicable fact to rely on for a divorce would be 2 years separation and both parties consent to the divorce taking place.

This could be the route that Jason and Catherine could be taking. It is however a myth that divorcing on the basis of 2 years separation is quicker than relying on another fact such as adultery or unreasonable behaviour. All divorce proceedings follow the same procedure and should take the same amount of time.

There is also a common misconception that you can divorce someone on the basis of ‘irreconcilable differences’, which again would be a more amicable way to divorce your spouse, however that fact does not exist here. It exists in the USA and I believe  that if it were available in England and Wales, then most of the divorcing couples would issue a divorce petition based on ‘irreconcilable differences’. It would help to avoid inflaming an already difficult situation that divorcing couples find themselves in and there was an attempt to introduce a ‘no fault divorce’ in the 1996 Family Law Act, however it was rejected by Parliament. Therefore you can only rely on the facts of adultery and unreasonable behaviour if you wish to divorce on straight away as opposed to waiting 2 years or 5 years since separating.

Whilst I can definitely see why some couples may want to wait 2 years and issue an amicable divorce petition, most clients I speak to do not want to wait 2 years as they feel that their lives are being put on hold . There can also be risks in relation to the finances and parties acquiring assets since separation and whether their ex-spouse would have a claim to it or not. Whilst it is recommended for those that want to wait 2 years but wish to settle the finances that a separation agreement is prepared, this is not legally binding and it can be changed.

Child Custody

Canadian divorce law: getting to understand child custody

After a divorce, families have to go through very hard moments. One of the two parents, for example, will have to leave the home and find a new place to live. The children could live very high stress because of a change in their living habits and the disappearance of a parent. Another stressful subject is child custody: who should take care of the kids after the divorce? This question tears apart many families and its answer vary from a country to another. If you are from Canada, the following article could give you basic insights on the subject.

How is the custody decision taken?

If there is a disagreement between the two parents and their divorce lawyer in regards to who will get the custody, an assessor could have to interview the parents in order to evaluate their parenting abilities. He will also visit the environment in which the child would live and analyze if it is suitable for him. After talking with the child to find out about his preferences, if he believes he would need extra information to make a good decision, the assessor can also discuss with relatives or professionals who have been in contact with the child.

This professional, though, cannot force the court to take a decision: he will only formulate recommendations. Sometimes, the judge will only hear out the different parties without hiring a third party to help. The opinion of an adolescent could be considered more important than the opinion of a child, even though some parents will play tricks in order to influence it.

The types of child custody

Based on each familial situation, the judge may decide to establish different kinds of custodies. Here are the four possible outcomes:

Sole custody: After hearing both parties, the judge may decide that only one parent should take care of the children. This parent will have full custody and will be entitled to taking all the main decisions regarding the children’s life.

Joint custody: In this case, the two parents will have to take care of the children. Sometimes, the father will be in charge of them one weekend out of two, for example.

Shared custody: Similar to joint custody, this main different of this alternative is that both parents will take care of at least 40% of the children’s custody.

Split custody: Even though split custody is pretty rare as it may disturb a family’s cohesion, it still exists. It means that the different children’s custody will be separated between the two parents.

Visitation rights

Most people will at least receive access to their children even if they do not get custody. Most of the time, these will be part of an agreement between the two parents. Two reasons could force the court to remove visitation rights: if abuses have occurred or if one’s parenting abilities are judged to be insufficient. Supervised access could still be granted in such situations, if the court agrees to it.

Relocation issues

In conclusion, take note that parents who received custody of a child cannot easily move away with him. If the other parent disagrees, an application will have to be filed to explain to the judge why it would be in the child’s interests to move away. If the application is able to prove that the family’s life will be better off after the relocation, for example if the parent has found a much better job elsewhere, it could be accepted by the judge.