Divorce & Separation

Fathers often believe that they are at a disadvantage when a court awards custody of children, but parents start off on equal terms.

The court will do everything it can to make a decision in the child's best interests, which means taking all of the circumstances into account.

The court does often find that a baby or a very young child will be more suitably cared for by its mother, but this isn't always true. Many fathers are equally capable of caring for their children from babyhood and some mothers do not provide the best care. Each case will be decided after investigating all the circumstances including the feelings of the child, if he or she is old enough to understand what is going on.

As children grow older, the tilt of the scales in the mother's favour becomes less significant. Another factor which will be taken into account, if it is the case, is that the mother may be available on a full-time basis to care for the children whilst the father has a full-time job. Again, each case depends on its facts. The important thing will always be to discover what will be in the best interests of the child.

Consider these five questions:

Is the divorce contested?
If you and your spouse agree that you should divorce, your divorce is 'uncontested'. The vast majority of divorces are uncontested. You do not necessarily need a solicitor unless you disagree on other issues, such as the maintenance to be paid or how your property will be divided. If one spouse is unwilling to divorce, the divorce is 'contested' by that spouse. In this case, you'll need a solicitor to work out whether there are grounds for divorce.

Are minor children involved?
Some of the most important issues in divorce involve the welfare of any children under 18 (known as minor children). Because these issues are so important, the court will be concerned that what has been decided is in the best interests of the child. If you have children, you should ask a solicitor to approve the agreements that you and your spouse have made for them. An experienced solicitor can guide you to a settlement that the court will approve for the children.

Can property can be divided easily?
If your divorce involves deciding who, for example, keeps different items of furniture, you should be able to resolve these questions without a solicitor. If you own substantial property, you will want a solicitor to make sure you receive your fair share and that the way your property is divided is tax-effective.

Do you need or expect future support from your spouse?
If you'll be financially dependent on your spouse after the divorce, you may need a solicitor to help you negotiate how much you'll receive and to get this agreement legally protected.

Are there proper grounds for a divorce?
Your rights to a divorce are not automatic. You must show one of 'five facts' which have affected your marriage.

In England, Wales and Scotland, there is only one basic ground for divorce - the irretrievable breakdown of the marriage. Irretrievable breakdown is proven by establishing one or more of the following 'facts':

1. Adultery
2. Unreasonable behaviour
3. Desertion (this ground can no longer be used in Scotland)
4. Two-year separation in England and Wales or one-year in Scotland, when the other party consents to a divorce
5. Five-year separation in England and Wales or two-year in Scotland, in which case no consent is needed.

In some recent cases, fathers have been given custody of the children where it is the mother who has been the breadwinner, while the father stayed at home acting as 'househusband'.

These cases don't show any change in the approach of the courts to residence disputes - rather, they are examples of the court deciding what is in the best interests of the children concerned based on the individual situation.