When parents divorce
Divorce can be confusing. Here's an explanation of the divorce process and where you stand legally.
How does the whole divorce process start?
To start divorce proceedings, one parent must apply for a petition at the County Court. This is basically a form they fill in which briefly spells out the grounds for wanting a divorce. You need to have been married at least a year (two years in Northern Ireland) to get a divorce. And, as the law stands, there are five ways to establish why your parents can no longer remain husband and wife:
1. If they have lived apart from each other for at least two years, and both of them want the divorce.
2. If they’ve been separated for five years, even though one parent doesn’t want to get divorced.
3. If one parent has deserted the other for at least two years.
4. If one parent has behaved unreasonably towards the other, (through physical abuse, for example, or because of a problem with drugs, alcohol or gambling)
5. If one parent has committed adultery (had a sexual relationship with someone else).
Once a petition has been made for a divorce, your parents will have every opportunity to sort their affairs without having to turn to a judge to make decisions for them. In some districts they may be referred to the court welfare service, or to a local out-of-court service who can offer a course of mediation.
Where do I fit in?
One of the most important issues to be sorted during mediation is your welfare and who you will live with. Providing you were born within your parents marriage, both your mum and dad have what’s called parental responsibility for you until you’re 16, or until you’re 19 if you’re in full-time education. This means that whatever living arrangements you sort out, they will both have an equal say in your welfare.
Under the 2004 Children’s Act, however, you are entitled to have your opinion taken into account during the mediation process. This ensures you’re happy about any arrangements made. There’s no judge, no jury, just an informal chat with a court welfare officer.
Reaching an outcome
If your mum and dad can fairly and reasonably agree on every issue, and you’re quite happy with the situation, then the whole process can be relatively hassle-free. The court hearing is then just a matter of procedure, and the divorce itself can be largely signed and sealed by post.
In cases where there is a dispute, however (about which parent you’ll be living with, for example, or how often you can get to see the other one), then the judge will make a court order. A court order is basically a rule concerning your welfare. One that both parents agree to recognise until you’ve finished full-time education or reached the age of eighteen. In England and Wales, the courts can make these decisions according to the Children’s Act. In Scotland, the Act does not apply. Even so, many aspects of the proceeding are very similar. For the lowdown, visit the YoungScot website
There are a number of different orders that the court can decide upon, depending on your situation:
- Residence orders: Are about which parent you live with. When parents can’t agree, the court will make a ruling (but only after they’ve listened to you). Some orders may split the time you spend with both parents, or it may be in your best interest to live with one and just visit the other. In some cases, it may even be better for you to live with a relative or close family friend, in which case parental responsibility will be handed over to them. In Northern Ireland a residence order used to be called a ‘care and control’ order or ‘custody’ but in Northern Ireland these terms are still used in law.
- Contact orders: If your parents can’t agree on how much contact you have with each parent, the court will decide for you. Be aware that the court will respect your own opinion on this issue, and won’t act against your will. Nor does a contact order set limits on how often you can phone, write, or email each other. That kind of contact is totally down to you.
Whatever the outcome of your parents’ divorce, court orders can be made for a long time afterwards. It can be a difficult time, read our article on dealing with divorce for advice.
Photo of ‘divorce’ by Shutterstock.
By Ally Thomas
Updated on 06-Jan-2023
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