If your relationship has ended, you need to ensure you make the right decisions for yourself and your family. At Slater and Gordon, we have a team of dedicated relationship breakdown solicitors who can guide you through your options at this difficult time, providing expert legal advice to ensure the best outcome for everyone. Contact one of the team on 0808 175 8000 or request a call back online.
What is Parental Responsibility?
Parental Responsibility is needed if you wish to have some say in the decisions regarding your child following relationship breakdown.
In simple terms, a person with parental responsibility is responsible for the care and wellbeing of a child. The law does not list what these duties, powers and rights are, but examples include:
- Consent to medical treatment
- Arranging a child’s education
- Agreeing to a child’s change of name
- Administering a child’s property
- Representing a child in legal proceedings
- Determining the culture and religion of a child
- Agreeing to a child’s adoption
- Agreeing to and prohibiting the issue of a child’s passport
Do I have Parental Responsibility?
Birth mothers have automatic parental responsibility from when the child is born, but the position with fathers can vary. Fathers will have parental responsibility if:
- They are or have been married to the mother at any time since the birth of the child
- They are registered jointly with the child’s mother on the birth certificate, providing it is after 1st December 2003
- They have acquired it by formal legal agreement with the mother or by Court Order
Parental responsibility is needed if you wish to have some say in the decisions regarding choosing your child’s school, religion and surname. It allows you to consent to medical treatment for your child. It also allows you to appoint a guardian on your death, and also permits you to sign consent forms for school trips.
What is the legal position with regard to going abroad and children?
Unless the Court gives permission, the consent of all those with parental responsibility is required before a child is taken out of the UK, no matter how short the trip may be. The position is however different when there is a Child Arrangements Order in place under which it is stated the child lives with either or both parents, or if a Special Guardianship Order is in force. In these instances, the person in whose favour the order is made may remove the child from the UK for up to one month in the case of a Child Arrangements Order and three months in the case of a Special Guardianship Order, without the consent of any other person with Parental Responsibility or the permission of the Court.
In a relationship, your finances are highly likely to have been pooled together. On separation, you will need to consider how your change in circumstances will affect how you each contribute to the wellbeing of your children. For example:
- What regular payments are either of you making for the children’s maintenance, and, to whom are the payments made?
- Who will pay for clothes and shoes for the children?
- Who will pay for uniforms, sports equipment and kit, etc.?
- Who will pay for travel, for example to see each of you, relatives and friends?
- Who will pay for school trips?
- Who will give the children pocket money?
- Who will pay for large items, such as bicycles, computers, musical instruments?
- How will you support the children through college, university or other training courses?
- How and when will you review these financial arrangements?
What are the maintenance options?
Parents have three options in respect of child maintenance. They can either enter into a private agreement (called a family based agreement) which is not legally binding, or record an agreement in a formal document which is legally binding by way of a Court Order. The final option if parents cannot agree the amount of maintenance between themselves is to apply for an assessment by the child maintenance service (CMS).
The child maintenance service distinguishes between the parent who doesn’t have day-to-day care of the child (the ‘paying parent’) and the parent or person who does (the ‘receiving parent’). An application cannot be made to the CMS if the receiving parent or the child lives outside the UK. The child maintenance liability will be calculated on the basis of a percentage of the paying parent’s gross weekly income after deduction of pension payments.
Reductions will apply depending on the number of nights the child stays overnight with the paying parent, or if the paying parent has relevant other children either living with them, or for whom they have to pay child maintenance.
Other financial matters
Relationship breakdown can dramatically affect your personal finances and assets. However, there is financial support that may be available to you and your family, but there are also certain financial issues you may need to discuss as part of the separation.
As a result of your separation you may become entitled to certain state benefits or additional benefits. Benefits you may be eligible for can include:
- Income Support
- Job Seeker’s Allowance
- Child Benefit – a tax-free payment that you can claim for your child. It is usually paid every four weeks but can sometimes be paid weekly. There are separate rates payable for each child. Child Benefit payments usually stop when your child reaches 16, unless they are in education or training that counts for Child Benefit. For example, an advanced course at higher education level such as a degree does not count. You cannot get Child Benefit for your child once they reach the age of 20. Whoever is paid Child Benefit is assumed to be the primary carer. Therefore, it is important to ascertain who is to be the primary carer of the child as this may affect other financial benefits and support as well as contact and residence arrangements. If you and another person both claim Child Benefit for the same child, only one of you can get it.
- Tax Credits - Tax Credits are being phased out and gradually replaced by Universal Credit. Universal Credit will be paid as a single monthly payment that will include a standard allowance plus additional allowances for elements including children, housing and caring responsibilities. Universal Credit is being introduced in stages, so whether you can claim depends on where you live and your personal circumstances. Until you are asked to make a claim for Universal Credit, you can continue to claim Tax Credits.
- Housing Benefit - local authorities offer support to those on a low income and pay Housing Benefit to those who qualify, to assist in the payment of rent. In order to qualify for Housing Benefit, you must: be paying rent and must not: have savings of over £16,000, live in the home of a close relative, be a full-time student (subject to exceptions), be an asylum seeker or be sponsored to be in the UK.
- Council Tax discounts - if you’re on a low income, you may qualify for Council Tax reduction. Your full Council Tax bill is based on at least two adults living in a home. If only one adult lives in a home (as their main home), the Council Tax is reduced by 25 per cent. Certain people are not counted when working out the number of adults who live in your home, including children under 18, people on apprenticeship schemes and full-time students.
- Disability Living Allowance
- State Pension
- Pension Credit
- Employment Support Allowance
- Carer’s Allowance
Please note that a number of the benefits listed above will be affected by the introduction of Universal Credit. Further information is available at www.gov.uk/universal-credit.
Why should I make a Will?
If you do not have a valid Will you have no say in what happens after your death, including what your preferred funeral arrangements would be and what happens to your estate. If you die without having made a valid Will, the intestacy laws come into play to decide how your estate is dealt with and who will inherit what. If you are still legally married (even if you are separated) and you have no Will then your spouse will inherit from your estate.
What is a Guardian and do I need to appoint one?
A Guardian is someone who you have selected to look after your children in case you die while they are still under the age of 18. However, only a parent with Parental Responsibility can actually appoint a Guardian.
How do I appoint a Guardian?
Most commonly, this can be appointed in your Will, or you could put it more informally on paper, so long as it is signed and dated. The effect of Guardianship will take immediate effect upon the death of the parent who has made the appointment, except where there is a surviving parent with Parental Responsibility.
Change of name
You can call yourself whatever you like by common usage. However, if you want to officially change your name you will have to present legal documentation to the relevant agencies. If you are divorced or have been through a dissolution, your Decree Absolute or Final Order will be sufficient. In other cases you will need a change of name deed.
Children and changing their names
Everyone with Parental Responsibility for a child will need to give their consent. For a definition of Parental Responsibility and a list of who may have it, please see the Children’s section of this guide. If you do not obtain the consent of all those with Parental Responsibility they can start legal proceedings to stop the change of name or obtain an Order to make you change it back.
You may be able to agree arrangements for the children and/or a financial settlement with your partner or spouse without needing any professional support from a relationship breakdown law expert. However, even if this is the case we would strongly recommend that you enter into a legal document to ensure that what you have agreed is legally binding. You must secure a court order as this is the only way in which you can have a final and binding legal agreement in respect of financial matters. The court order not only sets out the terms of the agreement, but more importantly it is the only way in which financial claims can be formally dismissed.
What are the options if you cannot reach your own agreement?
One of the options available to you if you can’t reach an agreement is mediation. Mediation is the process by which you and your partner or spouse meet together with a trained independent third party called a mediator. The mediator will facilitate discussions between you to encourage you to reach agreements about arrangements for the children, finances and property. The role of the mediator is to help you cooperate, resolve conflicts and help you reach joint decisions. Mediation is not reconciliation or counselling. It is sensible for you to receive legal advice alongside the mediation process to ensure that you are well informed about your legal position. The mediator is impartial and therefore cannot give you independent advice. The sessions usually last one and half hours each and can be arranged to suit your requirements. The number of sessions will depend on the issues that need to be resolved between you.
Another option is arbitration, which can best be described as private court proceedings. You and your partner or spouse will agree who will act as the arbitrator and you will pay for their services. Arbitrators are experienced family lawyers or judges. By engaging in the arbitration process, you agree to be bound by the arbitrator’s decision. Arbitration can be a fast and effective way of dealing with financial claims.
Finally, there is collaborative law - a process by which you and your partner or spouse still meet together, however, you each retain your own specially trained lawyer solicitor who is also present during the meetings. You decide the agenda and the pace at which the meetings progress. Collaborative law is particularly worth considering if you are likely to have an ongoing relationship with one another, whether because you have children together or friends in common.
Solicitor assisted negotiations
If you do not want to meet face to face, negotiations can still take place between you via a relationship breakdown law solicitor. This remains the most common method through which financial terms are agreed.
However, not all cases are suitable for mediation or the collaborative law process. Agreements may also not be reached despite attempts at negotiations. Although an application may be made to the court, the court process still offers the opportunity to resolve matters. Only those cases where agreements cannot be reached will be listed for a final hearing and after hearing evidence from the parties a judge will decide the appropriate order to make.