Sorting things out after divorce and separation can feel like trying to find your way through a minefield. The list of things that need to be dealt with can seem never ending. We explore the help you can get to deal with the legal side of separation
Should I always seek legal support?
Some dads head straight to the solicitor's office and family courts when they are going through divorce or separation. This can increase conflict and cause anguish to children.
Other dads avoid solicitors and other legal advice in the hope that they will be able to sort things out amicably. These dads can find themselves struggling to make sense of some pretty complex issues.
It is possible to take a middle course and to use legal advice and, if necessary, representation in a way that informs you of your legal position but does not increase hostility with your child’s mum.
A good family law solicitor will be able to help you with things like money matters, parental responsibility and contact issues. They will also be able to guide you through any legal processes that you might encounter and offer alternatives to court such as mediation.
What if my child’s mum won’t negotiate?
If your divorce or separation is acrimonious and likely to end up in court, it is vital that you get proper legal advice and representation. Make sure that you choose a solicitor who specialises in family law. They will have the kind of experience that you require.
If you are concerned that your child’s mum is preventing your child from seeing you, it is important to act quickly. This is because, in cases that go to court, current patterns of contact are considered as a way of deciding what may be appropriate in the future. It is important that you are part of that pattern of contact.
Is the legal system hostile to dads?
The most important piece of legislation in matters of contact is the Children Act 1989 or The Children (Scotland) Act 1995 as modified by the Family Law (Scotland) Act 2006. The legal principles in Scotland are basically the same as the English legislation. The Act states that “when a court determines any question with respect to the upbringing of a child…, the child’s welfare shall be the court’s paramount consideration.”
The Act is not prescriptive in any way as to what is in a child’s best interest. This means that the court will look at all the facts it is presented with and make its judgment based on these. There is nothing in the written law at least that favours mums over dads.
However, it must be recognised that the law is interpreted and applied by people who are likely to have the same cultural expectations of mums and dads as the wider population. This can, of course, be hugely frustrating for many dads.
Where can I find general legal advice?
There is a wealth of useful information on the internet and in your local library. You can also get excellent information and advice from organisations such as CAB and Community Legal Advice along with other local providers.
How do I choose a good solicitor?
When choosing a solicitor, always choose one that specialises in family law. The Law Society runs the Family Law Accreditation Scheme. Solicitors operating under this scheme regularly have their skills, knowledge and experience rigorously and independently assessed. In Scotland, contact the Family Law Association or CALM – a solicitor’s mediation organization.
Solicitors who are members of Resolution (formerly the Solicitors Family Law Association) follow a code of practice that promotes a non-confrontational approach to family problems. Their members encourage solutions that consider the needs of the whole family and in particular the best interests of children.
About the author
Clare Kirby qualified as a lawyer in 1983 and worked for several years in industry. She founded Kirby & Co in 1997. As a member of Resolution and an advanced member of the Law Society’s Family Law Panel she is experienced and respected in the field of family law. Trained as a collaborative lawyer, Clare offers clients a range of options - traditional, and collaborative law - to best meet the needs of the individual clients.
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