Tag: Lund Bennett Law

Who decides where a child lives after their parents separate?

Any separation can be difficult, but one that involves children can be particularly challenging and emotional.

The biggest decision that couples with children will need to make if they separate, is the children’s living arrangements.

Where possible, it is always easiest and less stressful for everyone involved if the family can come to an amiable agreement together.

However, this is not always possible. In instances where parents do not agree on where a child should live, they may need to seek help from one or more of the following:
•A solicitor specialising in family law.
•Mediation.
•The Family Court.

No matter which route you take to help decide the best living arrangements for your children, the welfare of the children is always considered first and foremost.

Family law solicitor
A family law solicitor will be able to advise you on all avenues open to you and provide you with sound legal advice and guidance.

Mediation
Mediation is a process guided by a trained, impartial, third-party that allows the two parties to have a constructive discussion and hopefully negotiate an outcome that all parties are happy with.

The Family Court
If an agreement still cannot be reached, then it may be necessary to apply to the Family Court for one or more orders to be made. A child arrangement order will decide who the child will live with, who they will spend time with, and when. In some cases, it may also be relevant for the court to issue a specific issue order or a prohibited steps order.

Lund Bennett are family law specialists based in Altrincham and Manchester. For legal help and guidance regarding disputes about child living arrangements, mediation services, or help applying for a court order, get in touch with our team of specialist solicitors by calling us on 0161 927 3118.

Unmarried cohabiting couples are the UK’s fastest growing family type

The typical family in the UK is changing, as more opposite-sex couples than ever are choosing to live together without getting married.

According to research by the ONS, whilst married couple families remain the commonest family type, between 2008 and 2018 the number of cohabiting couples grew faster than the number of married couples.

The figures show that the overall number of families in the UK has increased by 8% over the last decade, with the number of cohabiting couples increasing by 25.8%.

Meanwhile, since same-sex marriage was introduced in 2014, the number of same-sex couples getting married has steadily increased each year. Same-sex couple families have grown by 50% since 2015 and the number of same-sex married couples has doubled since 2017.

The data also shows that there are now more people than ever before living alone in the UK.

Legal protection for cohabiting couples

With 3.3 million couples now cohabiting in the UK, there have been calls to review cohabitation laws to keep up with the nation’s changing lifestyle trends.
Currently, cohabiting couples do not have the same legal protection as married couples. With over half of cohabiting couples owning property and financial assets together, it’s important that they seek legal protection.

One way that those cohabiting can gain some financial protection and security is by creating a cohabitation agreement.

A cohabitation agreement can be used to agree details about financial commitments and assets both whilst living together and in the event of a separation. The kinds of things that may be included in an agreement include who owns what assets, who is to pay what towards bills and living expenses, and in the event of a separation, where children would live, how property would be divided, and how debt would be split.

For help and advice with a cohabitation dispute or creating a cohabitation agreement, get in touch with our team of specialists here at Lund Bennett Law by giving us a call on 0161 927 3118.

What is the difference between an injunction and a restraining order?

Restraining orders and injunctions are both commonly used to protect victims of domestic abuse from their abusers.

Both types of order are used to restrict an offender’s actions in order to protect the victim and any children involved.

The kinds of restrictions that the two orders may impose on an offender include:

  • Prevent them from living in the family home.
  • Prevent them from entering the family home and the surrounding area.
  • Prevent them from contacting the victim.
  • Prevent them from pestering or harassing the victim.
  • Prevent them from using or threatening violence.

But what is the difference between the two types of order and when is each appropriate?

Injunctions

There are two different types of injunction; an occupation order, and a non-molestation order. Occupation orders primarily deal with who occupies the family home, whilst non-molestation orders prevent harassment and further abuse.

Restraining order

Restraining orders are imposed on offenders to prevent them from further abusing or harassing victims. The order can prevent them from contacting or coming within a certain distance of the victim.

What is the difference between an injunction and a restraining order?

Injunctions and restraining orders can be used for very similar purposes.

The main difference between the two is that an injunction can be used to impose restrictions on the offender before they’ve been charged with a criminal offence, whilst a restraining order is issued at the end of a criminal case. A restraining order can be issued whether or not the offender was found guilty.

If you don’t meet the criteria for an injunction, then a restraining order may be a better solution for you. It is also possible to apply for a restraining order yourself through the civil court.

If you require help, support, or legal advice relating to domestic abuse, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

Child cases starting in the family courts continue to rise

Following an influx in new childcare cases in the family courts, the President of the Family Law Division, Sir Andrew McFarlane has launched a public consultation into our current system.  At the launch he described those working in the court system as needingto “run up a down escalator” to deal with the amount of cases progressing through the courts.

Last year there was a staggering 53,164 private children cases involving 123,334 children. There is no sign that this rise will abate in the coming years.

Another factor putting pressure on the family court stems from the cuts to family legal aid. Under the current system only those who can demonstrate that they are both victims of domestic violence and on a low income qualify for family legal aid. Because of this, more-and-more litigants are representing themselves at court without the assistance of legal advice.

We would always recommend that clients seek independent legal advice when undergoing family proceedings and before attending court.

One aim of the McFarlane review is to identify cases that could be resolved through mediation rather than through the court system. A quarter of cases coming before the courts do not involve domestic violence or concerns about the safety of a child so may be suitable for negotiations between solicitors.

We have a breadth of experience in all aspects of children matters and are able to advise our clients in a sympathetic and pragmatic manner.

If you require legal advice or support, give our team of family law specialists here at Lund Bennett Law LLP a call on 0161 924 0079.

How can I gain parental responsibility for my child?

Without parental responsibility you may miss out on having a say in important decisions to do with your child’s life.

It is a common misconception that being a parent automatically grants you legal parental responsibility of your child.

Only those with legal parental responsibility can make important life decisions for a child.

The kinds of decisions that require parental responsibility include those to do with:

  • Education
  • Health and medical
  • Taking a child abroad
  • Religion
  • Child’s name

Parental responsibility is legally defined as: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

Who has parental responsibility?

Mothers automatically gain parental responsibility at the birth of their child.

A father will gain parental responsibility if:

  • He is married to the woman when the child is born.
  • The child was born after December 1st2003 and the father is listed on the child’s birth certificate.

How can a father gain parental responsibility?

Fathers without parental responsibility of their children can obtain it using one of the following methods:

  • Marrying the child’s mother.
  • Having his name registered on the birth certificate.
  • Entering into a parental responsibility agreement with the mother.
  • Obtaining a parental responsibility order from the court.
  • Obtaining a child arrangement order from the court.

Who else can gain parental responsibility?

In some situations, it may be appropriate for another family member to gain parental responsibility for a child. This could include a step-parent, grandparent, aunt or uncle.

In these instances, it is possible to apply to the court for a residence order or a special guardianship order.

If you require help obtaining parental responsibility of a child, get in touch with our team of specialist family law solicitors here at Lund Bennett by calling us on 0161 927 3118.

 

What evidence is required when applying for an occupation order?

Victims of domestic abuse should gather as much evidence as possible to support their case if they wish to apply for an occupation order.

Occupation orders are a type of injunction used to provide victims of domestic abuse with protection from their abuser and a safe place for them and their children to live.

If you meet the eligibility criteria to apply for an occupation order, then you will be required to gather as much evidence as possible to submit with your application. The more evidence you have, the better your chance of being granted an order.

Evidence may include:

Sworn statement

You will be required to write a sworn statement (sometimes called an affidavit) detailing the abuse that you have been subjected to and the effects that it has had on you and any children involved.

Although it may be painful and upsetting to recall events in detail, the more detailed and precise you can be, the better. If you know the dates and times that any of the incidents took place, then it is beneficial to record these in your statement.

Details about past events

Details about any past incidents should also be given as these can be useful in providing context to your case.

Independent evidence

If you can obtain any professional independent evidence like medical or police reports, then these will also strengthen your case.

The court will use the evidence you provide, and a ‘balance of harm’ and ‘core criteria’ test to consider the circumstances of your case in detail and the effects that an order would have on the health, wellbeing and safety of all parties involved.

If you require help, support, or legal advice relating to domestic abuseor occupation orders, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

How does the court decide whether to grant an occupation order?

When deciding whether to grant an occupation order, the court uses two tests to consider the effects that making the order would have on all parties involved.

When handling domestic abuse cases, the court has a duty of care to the applicant, the respondent, and any children involved in the case.

Granting an occupation order can temporarily provide victims of domestic violence a safe place to live by removing their spouse from the shared home.

The court uses the evidence provided and two tests to decide whether an occupation order is the best course of action.

The ‘balance of harm’ test

When carrying out the balance of harm test it is the court’s duty to consider and balance the level of harm likely to be caused to the applicant, the respondent and any relevant children, if the order was or wasn’t made.

Section 33(7) of the Family Law Act 1996 states that the court must grant an occupation order if they believe that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made.

Exceptions to this rule occur when the court believe that the respondent or child are likely to suffer significant harm or greater harm than the applicant if the order is made. In cases that involve a child, the child’s wellbeing is always the court’s paramount consideration.

The ‘core criteria’ test

The core criteria test takes into consideration the applicant’s relationship to the respondent and entitlement to the property.

If the applicant is entitled to the property, then according to Section 33(6) of the Family Law Act the court must then consider the following core criteria.

  • The housing needs and resources of each of the parties and of any relevant child.
  • The financial resources of each party.
  • The likely effect of any order, or of any decision by the court not to exercise its powers, on the health, safety or well-being of the parties and of any relevant child.
  • The conduct of the parties in relation to each other.

If the applicant is not entitled to the property then some additional factors will be taken into consideration, including, whether any children are involved, the length of the relationship, and the length of time since the relationship came to an end.

If you require help, support, or legal advice relating to domestic abuse or occupation orders, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

What constitutes psychological domestic abuse?

Since 2015 the law has recognised that psychological or emotional abuse can be just as upsetting and damaging to individuals as physical abuse.

The Serious Crime Act 2015 made ‘controlling or coercive behaviour’ in an intimate or family relationship an offence in the UK. Earlier this year, Scottish Parliament also made psychological domestic abuse a crime under their new Domestic Abuse Act.

Physical domestic abuse tends to be much easier to identify that emotional abuse, but that doesn’t make it any less distressing for the victim.

The key behaviours that constitute psychological domestic abuse are:

  • Controlling a person’s day-to-day activities– this can include, but isn’t limited to, where they go, who they see, and what they wear.
  • Intimidating behaviour– any behaviour that makes another person feel scared, including shouting, acting aggressively and making threats.
  • Putting someone down– this includes behaviour that damages a person’s confidence and sense of self-worth like repeatedly putting another person down or calling them names.
  • Financial control– this refers to controlling behaviour relating to another person’s employment or finances and can include withholding money or preventing someone from getting a job.
  • Isolation– preventing a person from spending time or speaking with their friends and family.
  • Degrading behaviour– carrying out activities or enforcing rules that humiliate, degrade or dehumanise a person.
  • Emotional blackmail– using threats or emotional outbursts to control or manipulate another person.

One or two isolated incidents of any of the above behaviours is unlikely to constitute domestic abuse. The behaviours become an offence when they are used repeatedly and calculatedly by a perpetrator, resulting in serious alarm or distress for the victim.

If you are being subjected to domestic abuseand require legal advice or support, give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

Am I eligible to apply for an occupation order?

An occupation order can enforce safe living arrangement for victims of domestic abuse.

If you have suffered domestic abuse you may feel unsafe living in the same house as your perpetrator. An occupation order can be used to provide you with a safe place to live by regulating who can live in your family home.

How can an occupation order be used?

Occupation orders are flexible and can be used in a variety of ways to offer victims protection. Some of the commonest ways in which occupation orders are used in domestic abuse cases include:

  • To exclude someone from the family home.
  • To enforce the right to remain in or return to the family home.
  • To set out who pays for expenses relating to the family home.
  • To exclude someone from a defined area around the family home.

Eligibility to apply for an occupation order

In order to be eligible to apply for an occupation order you must be ‘associated’ with the other person in one of the following ways:

  • Married, in a civil partnership, or engaged.
  • Previously married or in a civil partnership.
  • Cohabiting in a family scenario.
  • In an intimate physical relationship for a significant length of time.
  • Have parental responsibility for the same child.

Occupation orders are only applicable in very serious cases as they can grant access to a property that a victim does not have a legal entitlement to and deny access to a perpetrator with legal entitlement.

The court will assess whether an occupation order is suitable for your individual case by applying two tests. The tests are called the balance of harm test and the core criteria test. These tests take into consideration the health, safety and well-being of the victim and any children involved and their related housing and resource needs.

If you require help, support, or legal advice relating to domestic abuseor occupation orders, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

Benefits of introducing a no-fault divorce

The introduction of no-fault divorces is set to make getting a divorce simpler and more amicable.

UK law will soon reflect the fact that sometimes relationships don’t work and there isn’t necessarily anyone to blame.

The changes to the law will introduce no-fault divorces, allowing couples to submit an amicable statement of irretrievable breakdown instead of being required to provide evidence of adultery or unreasonable behaviour.

Here are just a few benefits of no-fault divorces.

Reduce conflict, stress and upset – Splitting up with a spouse is often a time full of upheaval and big life changes. The option for an amicable no-fault divorce can make the process psychologically easier and help to reduce stress and upset at what is already an emotionally-charged time.

Speed up the process– Under current laws, if only one party agrees to the divorce and there is no one to blame for the breakdown of the relationship, then the couple need to live separately for five years before a divorce will be granted. The new laws will remove the need to place blame on one party just to speed up the process.

More chance of a reconciliation – There is more chance of couples working out their differences and reconciling if proceedings are amicable. Having to place blame on one party in order to prove the breakdown of the relationship causes further friction and intensifies any bad feelings between couples.

Less upsetting for children – For relationships involving children, any measures that make the split less heated are beneficial. Divorce can be traumatic for children stuck between feuding parents who blame each other for the failed relationship.

Save money on court costs – Being able to come to an agreement without placing blame, should make it easier for agreements to be made outside of court, keeping legal costs down.

If you require legal help or advice with divorce law, get in touch with our team of specialist solicitors here at Lund Bennett by giving us a call on 0161 927 3118.