For most parents when they reach the conclusion that they are going to separate their main priority and concern is how are they going to tell the children. My fellow divorce solicitors and I are often asked by my clients what they should tell the children about the separation and when they should tell them.
Going through the loss of a relationship is such an emotional time for parents and presenting a supportive role for the children can be difficult. Family consultants are often better placed than lawyers to support you through the process of telling the children about the separation.
A Family Consultant often works with families throughout the divorce process. Judith MacDonald-Lawson is a Family Consultant and Mediator specialising in child arrangements and direct consultations with children, Judith confirms that communicating effectively about issues such as how and when to tell the children, deciding who leaves the family home and when, and negotiating spending time with the children can be extremely painful. Parents often need help to manage the discussions that have to take place about the children’s lives; children will feel loyal to both parents and can feel that they are in the middle of a tug-of-war.
Several sessions with an experienced Family Consultant might enable you to discuss in a safe, neutral space the needs of your children, how they are coping, how to recognise your children’s anxieties and how you might help them cope better. Children frequently feel responsible for the breakdown of their parents’ relationship and that, by being good, they might be able to mend things. Of course, it is very difficult to focus on children of any age when you are having to manage your own feelings, but your children will be very fearful of the changes that are happening, however well you protect them. Whether they are 2 or 16, children will need their feelings about the family breakdown to be understood by their parents.
Although parents have so many decisions to make when they separate and divorce, there does need to be a structured plan for how the children will spend time with both parents. Of course, what may seem like a good, sensible arrangement when your children are 4 and 6 may need to be reconsidered when they are starting secondary school, so agreeing to review arrangements at regular intervals can be part of this plan.
In addition to the emotional support needed to support children during divorce, it is vital that parents also understand the legal implication of separation on arrangements for their children. Here we look at some of the key areas:
There are practicalities that will need to be considered during the divorce process. Firstly, all parents have a duty to financially support their children. Child maintenance or child support is usually paid to the parent who has the children living with them. Ideally, the parents will agree the amount to be paid to the parent with the care of the children. However, if they cannot agree, the Child Maintenance Service exists and will assess the amount which should be paid. There is a strict formula based upon the paying parent’s income, the number of children and the number of nights the children spend with them. A recent blog on Child Maintenance by Chris Maulkin provides more information. The court only has power to deal with child support in limited circumstances. You can access a user friendly version of the child maintenance calculator which we have developed here.
While agreeing or calculating the amount of child support is not always straight forward, parents do at least know that there is a formula which is applied to the monthly payment. For any other financial matter relating to the children the law is less formulaic. However, what is clear and is a fundamental principle of our legal system is that the children and their needs take priority.
In terms of all other financial matters, the Matrimonial Causes Act 1973 is the main piece of law which governs the division of assets on divorce. It is set out in this Act that first priority is given to the needs of the children. What this means in practice is that the children will be considered first when dividing the assets and the most pressing need the children will have is where they are to live. This does not necessarily mean that the jointly owned family home will have to be retained for them to live in at all cost, but it does mean that we need to know where the children will be living and that each parent will have suitable accommodation for the children to live in/stay at. If you have this at the forefront of your mind in discussions with your spouse, then you should find discussions about the division of the assets are more constructive and in line with what the law would expect to happen.
The law for parents of children who are not married is dealt with under Schedule 1 of the Children Act 1989. It would require a separate blog to do justice to this subject, so watch this space. However, perhaps it is a start to say that parents who are not married and have care of the children can look to have a property transferred/purchased for them while the children are minors to provide a home for the children. There has to be sufficient assets and income to support a property to enable this to happen.
Arrangements for the Children
The Children Act 1989 is the main piece of legislation that governs decisions relating to children on the breakdown of a relationship – this includes decisions about where the children should live, how much time they should spend with each parent and other fundamental parts of the children’s lives such as the location they should live, the school they should attend. The overriding principle is that the children’s welfare is paramount in any decision made about them. Emotions can run high on separation but, however difficult it is, these need to be set to one side when decisions are to be made about the children. Each time there is a decision to be made start from what is best for your child and you should end up making the right decisions in difficult circumstances. Also remember that our legal system takes the view that it is the child’s right to see their parents, not the parent’s right to see the child. The approach is that a child should see both parents unless there are exceptional reasons why they should not.
There is help out there at such a difficult time. No matter how amicable the separation is, I would recommend taking the time to look at the resources available to protect your children as much as possible, www.resolution.org.uk is a fantastic resource for parents and they run a workshop called Parenting after Parting. Once you have looked at that resource I would recommend that the two parents complete a parenting plan together http://parentingplan.co.uk/index.html. Review the parenting plan regularly, when the children get older their needs will change.
Finding a way to communicate is the key to protecting your children. While you and your former partner may no longer want to be together, your lives are joined by the children you created together. Whatever is happening between the two of you, both of you want the best for your children, but it just can sometimes take a bit of time to work out what that means.