Joanne McDonald

How to Manage a Divorce When One Partner Will not Consent to it? Can the Divorce Still Proceed?
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How to Manage a Divorce When One Partner Will not Consent to it? Can the Divorce Still Proceed?

Published on
Joanne McDonald
Joanne McDonald
Associate
Furley Page

When the process for divorce was overhauled in 2022 with the implementation of the Divorce, Dissolution and Separation Act 2020, a major change was the removal of the ability of one person to “defend” a divorce, based on their view that the marriage had not broken down irretrievably.

Under the new procedure, even if the person receiving a divorce application (the “respondent”) does not want a divorce, the person who does want the divorce and made the application (the “applicant”) cannot be prevented from moving forward with it, save for in very limited circumstances. Consent and co-operation are no longer required to obtain a divorce.

Now the respondent can only dispute the proceedings based on technical issues, such as to challenge the jurisdiction of the court (which means that the person disputing the divorce doesn’t believe that the courts of England and Wales have the power to deal with the case and that it should be dealt with elsewhere), to argue about the validity of the marriage or civil partnership, or to assert that the marriage or civil partnership has already been legally ended.

When the divorce application has been served on the respondent (typically this means they have been sent the paperwork by email), they have 14 days to respond, or slightly longer if they live outside of England and Wales. A respondent can set out on this form an intention to dispute the divorce.

If a respondent wishes to dispute the proceedings, they must then send to the court an “answer” on form D8B saying exactly why they dispute the proceedings. This must be sent to the court within 21 days from the date on which their acknowledgement of service was due. At the time of writing, an “answer” cannot be filed via the online portal, so must be sent to the Court on paper.

Upon receiving an “answer” from the respondent, the court will, within 21 days, arrange a hearing for the judge to set out what further evidence is required to enable a decision to be made about whether the divorce can proceed. Once the court has that evidence, a further hearing will take place and unless an exemption applies, it will do so in open court, which means the hearing is open to the public and press to attend.

Given the limited circumstances in which a divorce can be disputed now,  that situation is rare so specialist legal advice should be obtained.

More common than disputed proceedings are those in which a respondent simply fails to acknowledgement service of the divorce application on time, which can lead to a delay in progress. If a respondent does this, an application can be made by the applicant to “deem service”. The effect is that the Court will confirm it is satisfied that the respondent has received the divorce application and the applicant will then be able to progress the divorce without any involvement by the respondent.

Read more articles by Joanne McDonald.

About Joanne McDonald

Joanne joined the Family law team at Furley Page as an Associate in October 2021.  Joanne is a member of Resolution for Family Law and adheres to a Code of Practice promoting a constructive approach to the resolution of family matters.

Joanne has always had a passion for family law and demonstrates this through her commitment to clients. She understands that the breakdown of a relationship can be distressing and strives to ensure that clients feel supported through the process. As well as relationship breakdown, Joanne advises clients prior to marriage in respect of nuptial agreements and clients who are making the decision to cohabit with a partner and want to ensure clarity of future arrangements.

Contact Joanne McDonald, Associate Solicitor in Furley Page’s family law team on 01634 828277 or email JLM@furleypage.co.uk.

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How can I legally deal with parental alienation when I am the targeted parent?
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How Can I Legally Deal with Parental Alienation When I am the Targeted Parent?

Published on
Joanne McDonald
Joanne McDonald
Associate
Furley Page

Whilst we may hear the phrase “parental alienation” more now than in years gone by, in its true form, it is still uncommon. There is currently no agreed definition for the concept, but it can be summarised as one parent being so opposed to contact between a child and the other parent that they take active steps to try to make contact impossible. Parental alienation can be perpetrated by either parent, regardless of gender identification or sex.

The behaviours constituting parental alienation vary greatly but typically include an ongoing pattern of negative behaviours to influence, manipulate and/ or pressure a child into aligning themselves with one parent rather than the other.  This may include denigrating, demeaning, ridiculing or dismissing the other parent by telling false stories to the child about their other parent, or withholding information from the child about their other parent which may show the other parent in a positive light.

Alienation should not be confused with low level hostility / resentment of one parent towards another which can be present immediately following a separation whilst emotions are running high. Rather, parental alienation is a consistent and deliberate attempt to undermine or put an end to a child’s relationship with their other parent.

The result of alienation is that a child has genuine fear and resistance towards contact with their other parent as they have been manipulated and led to believe that the parent is negative or presents a risk in some way or another.

If you are the parent who is the target of alienation, the most important thing is to act quickly. The longer a child is exposed to alienating behaviours, the more likely it is that harm will be suffered by the child. Court proceedings are not a quick-fix and complex matters can take several hearings to resolve.

Depending on the circumstances, the first step is to issue an application with the court for child arrangements order and make clear on the form you have concerns about parental alienation. The application should be accompanied by an Allegations of Harm form which provides a greater opportunity to elaborate on the alienation allegations.

When court proceedings have been issued, an officer from the Children and Family Court Advisory and Support Service (CAFCASS) will be allocated to the case and you will have an opportunity to discuss the allegations with them. CAFCASS will then make recommendations to the court as to what the next steps should be.

This may be for CAFCASS to undertake a detailed report to ascertain any areas of welfare concerns including alienation as well as the child’s wishes and feelings. To achieve this, CAFCASS will likely speak to the child in question and assess why they have resistance to contact or talk to the other parent and try  to understand whether the child’s view is likely resulting from alienating behaviours. CAFCASS may also recommend other steps such as attendance at a separated parents information programme.

In some cases, an expert psychologist may be appointed to assess the child and any emotional harm they may be suffering, but ultimately, the existence of parental alienation is not a syndrome to be diagnosed. What is important is identifying whether alienating behaviour has taken place and, if so, what emotional harm that behaviour has caused to a child and their relationship with the alienated parent and what can be done about it.

The court has the power to make various orders in relation to the time a child lives and spends with each parent. The court can also make orders to enforce such arrangements which may assist in some cases, but sometimes the court has to go further.

In serious cases of alienation, the court has demonstrated that it can and will order a change in residence of a child from the alienating parent to the alienated parent if that is in the child’s best interests. An order can then be made for the child to have contact with the perpetrating parent, but it may be that further safeguards and / or conditions are required to make that contact safe for the child and without undermining the alienated parent further. This can mean the involvement of supervision of contact and / or there being a break in contact between the perpetrating parent and the child to allow the relationship with the alienated parent to be re-established.

Support for parental alienation

Cases involving parental alienation can be complex and it is advisable to seek legal advice from a specialist in this area of the law. If you have questions about parental alienation, please feel free to get in touch so one of the team of family law experts at Furley Page can help.

Read more articles by Furley Page.

About Joanne McDonald

Joanne joined the Family law team at Furley Page as an Associate in October 2021.  Joanne is a member of Resolution for Family Law and adheres to a Code of Practice promoting a constructive approach to the resolution of family matters.

Joanne has always had a passion for family law and demonstrates this through her commitment to clients. She understands that the breakdown of a relationship can be distressing and strives to ensure that clients feel supported through the process. As well as relationship breakdown, Joanne advises clients prior to marriage in respect of nuptial agreements and clients who are making the decision to cohabit with a partner and want to ensure clarity of future arrangements.

Contact Joanne McDonald, Associate Solicitor in Furley Page’s family law team on 01634 828277 or email JLM@furleypage.co.uk.

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Lawyer Urges Couples to Plan Pre-Nuptial Agreements Early as Wedding Season Nears
Photo by Marc A. Sporys on Unsplash.

Lawyer Urges Couples to Plan Pre-Nuptial Agreements Early as Wedding Season Nears

Published on
Joanne McDonald
Joanne McDonald
Associate
Furley Page

A pre-nuptial agreement or ‘pre-nup‘ is a bespoke legal document which sets out how parties agree their finances should be dealt with in the event of a future divorce, which often includes an element of preserving or ring-fencing assets.  

Pre-nuptial agreements are not currently binding in England and Wales, but if completed appropriately with specialist advice, they can be considered to hold significant weight when determining the outcome of financial matters between separating parties.   

Divorce is a fact of life for many people, and those marrying tend to be increasingly aware of the risk of divorce, however much they wish to avoid it.  For those who would like increased certainty as to what will happen to their assets in the future, particularly those who have acquired their own assets at the time of marriage, a pre-nuptial agreement is an attractive option.  

A key factor in determining whether a pre-nuptial agreement might be followed by a court is to ensure that the agreement is concluded in good time prior to the marriage. Taking steps to consult a lawyer five to six months in advance of the intended wedding date is important to give sufficient time to complete the process. 

Whilst the preservation or division of assets may be a concern for those entering a first-time marriage, demand for pre-nuptial agreements is more pronounced among those who are seeking to remarry. With remarriages, parties often have considerations beyond their future spouse, such as inheritances already received, or children from previous relationships. 

Pre-nuptial agreements can save parties considerable legal fees in the event of a future dispute and the cost of not entering one can be significant. Whilst imperfect, pre-nuptial agreements are the only tool currently available to parties to pre-emptively seek to ring-fence or protect assets from being shared upon divorce.

Click here for more articles by Furley Page Solicitors

About Joanne McDonald

Joanne joined the Family law team at Furley Page as an Associate in October 2021.  Joanne is a member of Resolution for Family Law and adheres to a Code of Practice promoting a constructive approach to the resolution of family matters.

Joanne has always had a passion for family law and demonstrates this through her commitment to clients. She understands that the breakdown of a relationship can be distressing and strives to ensure that clients feel supported through the process. As well as relationship breakdown, Joanne advises clients prior to marriage in respect of nuptial agreements and clients who are making the decision to cohabit with a partner and want to ensure clarity of future arrangements.

You might be interested in