Arrangements for the Children in Divorce
Some people believe that during the divorce process, the Court routinely makes decisions about their children. This is not true.
Instead, you are encouraged to make your own arrangements. Going through the Courts usually increases animosity between you, and it can be a long and expensive process that leaves everyone feeling dissatisfied.
That’s why the law promotes a collaborative approach. Thanks to mediation and other forms of dispute resolution, parents are often able to agree on the arrangements for their children. This is particularly true of over-arching decisions, such as where a child should live.
If relations between you and your ex-partner are especially tense, you might not think it possible to agree on anything. Emotions are often high and reaching an agreement in relation to something as important as your children is very difficult. It’s very important to put your differences aside and focus on the needs of your children.
Of course, there are occasions when a collaborative approach is not successful, or isn’t suitable (for example, due to a history/threat of domestic violence). In these circumstances, a Court will decide on your behalf. The Judge will make their decision based on a number of factors, with a primary focus on the welfare of the child and what he/she believes to be in the child’s best interests.
Either parent can be the ‘primary care-giver'. This means the parent responsible for the child’s day-to-day care. In some cases, both parents share the care of the children.
In practice, this involves a large amount of communication and flexibility and works best when parents can put their emotions aside.
What about the Family Home?
Again, you are encouraged to work this out through agreement or using the collaborative process. If you cannot agree, an application to the Courts may be necessary.
If you reach an agreement, this needs to be drawn into a Consent Order which is approved by the Court. This Consent Order makes the agreement legally binding and often part of the agreement is that the parties have a clean break in life and death. It’s very important that you do obtain a Consent Order after your agreement as without certain clauses, you’re left open to claims by your ex-partner in the future.
If a Judge must decide on your behalf, his/her decision will be largely influenced by the needs of the parties, which includes the needs of the person caring for the children. This is because the Court will want to limit the disruption to your children’s lives as much as possible. All of the assets of the marriage are considered, including assets held in one party’s sole name. They are then divided based on the reasonable needs of each party.
There are a number of options available such as property transfers, orders for sale and orders that allow one party to stay in a property for a period of time and sold later down the line. The Court will always try to ensure that both parties have an equal drop in their standard of living and the aim is to try and ensure both parties can start fresh.