When it comes to divorce, the toughest and yet most important consideration should be to protect the interest of any children. A child is anyone who is under 18 years.
Accordingly, there is no general duty on the courts to consider the interest of children during the divorce procedure. However, s11 of the Family Law Act 1996 says that a divorce may not be allowed if arrangements for the child are not made. Additionally, s10 states that if a divorce were to take place, and this severely affects the child financially and/or gives them other hardships, the divorce will be prevented. (Note that this is up to the discretion of the court).
To prevent prolonging a divorce procedure, as mentioned in the financial settlement chapter, the welfare of the child must be agreed upon and made into a consent order alongside the rest of the issues.
Issues about welfare that must be discussed are:
1. Who will the child live with and where?
Both parents have equal rights to their child. However, it is statistically shown that children will tend to live with their mothers in matrimonial home. However, this will be up to the discretion of the parents. Depending on who’s place is closest to the child’s school and whether staying at the matrimonial home is more comfortable. If the living situation cannot be agreed up, the parents may apply to the court for a Residence Order and allow the court to decide on the issue. Alongside the Residence Order, the court may also consider a Contact Order which considers how often the non-resident parent should see the children.
If you have an abusive partner, a court order will be the best decision. In this case, legal aid will usually assist with court costs.
2. Child maintenance payments.
After the divorce, the parent with the higher income can make maintenance payments or ‘periodical payments’ to the lower/non-earning parent if they have main custody over the child. These payments can go on for life, which is why you must consider:
a. if you should be paying/receiving maintenance;
This is will depend on circumstances, for example, should one party have a high income and the other a low one and is caring for young children, maintenance may be appropriate for them to sustain a fair standard of living.
b. how long this should go on for;
This is will also depend on circumstances. It can be for as long until the children have grown up, or when the parent in receipt of maintenance can go back to work and the income from work will be sufficient. If you had a higher standard of living, a compensation payment may be considered as there will be a big difference between previous lifestyle and projected lifestyle. Once this has been agreed and put into a Consent Order, it will become a Maintenance Order with legal obligations attached to it.
c. how much should the maintenance be.
Depending on your income, both parties will generally have to change their lifestyle to better suit their new circumstances. When deciding on maintenance payments, you have to consider how much you will need for your child (e.g., School fees, maintenance fees, lifestyle fees). Additionally, note whether your income is sufficient for bills and food to provide for both you and your child. Also, if you are receiving any state benefit, consider if maintenance payments make affect that or supplement that. For example, your amount of benefit could decrease or stop altogether should the payments you receive from your spouse provide you with a sufficient income.
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