…but is it all really necessary? Will it actually make any difference to your case?
It’s a great question. It’s possible that you can turn up at your next hearing with nothing at all, that the court will listen to you, take into account that you’re a litigant-in-person who doesn’t understand the bedroom reading that is Practice Direction 27A and make an order that you feel is fair and in the best interests of your child.
In the same way it’s likely that on the way to the hearing you won’t need the restraint of your seat belt because you’re not going to drive into the back of the car in front of you. We’re guessing that despite this you usually buckle up when you go for drive though.
It’s all about the judgement isn’t it? It’s a risk you decide is or isn’t acceptable. Some things are worth punting – some things aren’t.
When you’re in the family courts it’s your how much money you’ll be left with when the dust settles from the divorce or separation. Or when your children will be able to see you. You know how important it is to you. When you ask us, we’ll tell you if we think it is worth putting together than trial bundle. That statement. Anything else.
We can be a cautious bunch here at Family Law Towers. We’re great at doing things on the fly. Which is useful when it comes to helping you in negotiations. When you’ve got the police knocking at your door. When you’ve been pole-axed by a piece of information at precisely the wrong moment.
But when that sort of stuff isn’t happening we like to prepare, organise and decide what an acceptable risk is. The decision is yours however and we’ll support you in whatever way you choose…
How these are dealt with depend on your own particular situation. Things like…do you agree on them? Are you amicable? What the circumstances of your situation? What is the situation with assets? Liabilities? At least two of them can apply to unmarried couples too (for our more legally minded friends we’re talking about TOLATA and Schedule 1 Applications).
Timing is crucial too…so it’s often a case of judgement and not simply knowledge of the Matrimonial Causes Act 1973 or what forms to fill in and how.
The three strands of divorce: Spot the odd one out
OK, OK. Bit of a trick headline there.
But the court really wants you to agree on things without it having to get involved as much as possible. They’re overstretched, under budgeted and besides…you’re much more likely to stick to an order if you are actually happy with it – which is where agreement comes in.
But for the sake of drawing a line on a marriage there does need to be a certain amount of paperwork.
So there does need to be a piece of paper that says you’re actually divorced.
And there needs to be something that says you’re not the financial liability or beneficiary of your (now ex) spouse’s money woes or otherwise.
Children though…agree the arrangement between yourselves and it’s not the business of anyone else’s. You can (and should!) work with your ex partner to raise your children as best as you can despite going your separate ways.
You don’t need an order for your children. You don’t need use to help you with that if you agree with your ex and you don’t need a solicitor.
Divorce: The wrap up
The take home from this post is straightforward:
When most people talk about `divorce’ the usually mean the whole lot – divorce itself, money and children.
Unmarried people can (but don’t have to) deal with money and children.
Agreeing stuff is better, faster and cheaper than involving us or a solicitor.
It is possible.
As always…keep things amicable where ever possible!
We get asked all sorts of questions. Some of them are complicated, some are simple – it kind of goes with the territory of what we do on a day to day basis.
But we hear quite a few myths about McKenzie Friends – many of which are untrue. They confuse people so without further ado here’s a run down on the biggies.
Can you represent me?
No. Only a solicitor or a barrister can do that. Its’ worth thinking for a moment what being `represented’ actually mean in a court context. Here it means someone who can speak for you in court. Respond to other people on your behalf – write to your ex and/or their solicitor. Sign documents. Solicitors and barristers are officers of the court.
As that link says:
Although solicitors must fearlessly advance their clients’ cases, they are not “hired guns” whose only duty is to their client. They also owe duties to the courts, third parties and to the public interest.
So we can’t. We can offer you advice, help with paperwork, that sort of thing – but we cannot represent you. But over the decade we’ve assist people we’ve come up with a pretty good way of both following the rules about what we can do and providing you with the help you need!
Are you solicitors?
See above. Solicitors are officers of the court (see above). They’re legally qualified.
McKenzie Friends don’t have to be qualified either but some are (Michaela Wade is a CILEX-qualified paralegal). Others have a wide range of skills and experience.
Our advice is based on our legal knowledge (as I say above our team includes qualified individuals) and experience of a large number of wide-varying cases over the years. We’ll tell you what we think the best action to progress the situation is – and you are free to follow or disregard it at any point. We’ll tell you what the court has the power to do and not to do, what the likely response of the court and others involved in the case will be and how to handle changing situations.
It’s really as simple as that.
Can you come to court with me?
Yes! We’re really not sure why people seem to think we can’t. We can! Speak to many legal professionals and they’ll be under the impression that is all we do – they think we’ll turn up on the day, sit with you and go away when the hearing ends (Pro-tip: We do a lot more than that!)
The only time we can’t be with you is during CAFCASS conciliation appointments (mediation before a hearing) – but neither can your solicitor be if you have one instead of us assisting you.
So we can be with you at all points – including when it comes to going into the court room to speak to the judge or magistrates.
Can I change the judge/CAFCASS officer/social worker?
Maybe. But seriously…99.99% of the time it isn’t going to work and it isn’t going to help trying. It’s understandable especially if things aren’t going the way you’d like. The processes to achieve this are there – but for obvious reasons they tend to be a lot harder than actually working with the system to get the desired result.
It’s important to look at the big picture too. Judges, CAFCASS officers, social workers – they often move on over the life span of a case so it’s quite possible that whoever you aren’t particularly enamoured won’t be involved before long in any case.
This last one is a controversial – I know. But it’s a fact. Court cases are hard. Fighting the people involved in the system is even harder and you should conserve your energy on your primary goal.
If you’re not clear on what your McKenzie Friend can do – ask. Read. Practice Guidance on McKenzie Friends is the definitive guide to what we can and can’t do. Anything else you’re reading is just rumour!
“Insanity is doing the same thing over and over again and expecting different results”
2018 – New Year, new you? Or the same old issues you feel chained to for many years to come?
It’s easy to feel powerless when you are involved in the family or other civil courts. Easy to feel a hostile ex partner pulls your strings, casts a shadow and dominates your day-to-day life.
It doesn’t have to be like that.
Ask yourself `If I represent myself in court how would that help?’
Some good answers here:
Because you can.
You’ll empower yourself.
You will be stronger and more confident after doing so.
No one knows the case quite like you.
Oh…and you’ll save a lot of cash too. If that sort of thing interests you.
It’s normal to think your situation is unique. That your ex is doing new and inventive ways to break court orders and that he/she will continue to do so until Doomsday without any consequence.
But the truth is that nothing is new under the sun. Whatever your position someone has gone through it before and learned whether their response to it has worked or not.
You can learn too: Is what you’re doing working? Has it made things better? Worse? Or made no difference?
Represent myself? Some basics.
Put aside your feelings. Yes, I know it’s a bit Zen…in many cases we’re talking about your children here aren’t we? But if you are the sort of person who would do anything for your kids would that include keeping your mouth shut at the optimal time, focusing about your goals, being realistic about what you can achieve or not lashing out at anyone who is nearby and being patient?
You have way more power than you could ever imagine. And you are defeated only when you give up.
So make 2018 a year things change. Take control of your life. Take control of your own actions and know you cannot change anyone else. The information is out there.
It’s yours to lose. What you going to do different this year?
If you are going to be dealing with the family courts make sure you don’t ask for child custody. There’s a good reason for this.
`Child Custody’ has no legal meaning in England & Wales
In fact it has had no meaning at all since 1989 when the Children Act became law. That’s when the Berlin Wall came down, the first GPS satellite was launched and Back to the Future II was released. Great Scott!
So walking into a court and asking for Child Custody is on a par with trying to book a Pan Am flight to take you to East Berlin. At best you’ll get strange looks and told there is no such thing. At worst you’ll be sent away with nothing.
It’s no surprise though. The term is used elsewhere. But not in England and Wales.
Using the term `Child Custody’ is vague too. What does it mean? Does it mean whoever gets it doesn’t have to let the kids see the other parents at all? Or stay overnights? Or is able to call the police and get them back at any point (you can’t do that with modern orders by the way).
You can hardly blame the court if you aren’t clear about what it is you want. You’ll likely be asked as a litigant in person but you’ll also probably get something you didn’t expect and don’t really want.
Be clear about what it is you want and what the court can and can’t do.
Don’t ask for something the court can’t order. If you want `residence’ (another term that no longer has a legal meaning but is snappier than describing who the children live with’) know what it means. Hint. It has nothing to do with how long your kids are with you and the ex.
If you want contact (again…a redundant term but like `residence’ still understood by the court) make it clear. And understand that the two are independent of each other. And complicated by the fact that being a resident or non resident parent again has no bearing on either of the previous too…
So be clear what is you want. Make sure you know what terms to use and not to use. If you don’t and you don’t like the result it’ll be no surprise if the unexpected happens.
Don’t waste your time in the family court. You only have a limited amount of time to get your point across so make everything you do and say is relevant.
People often waste precious time, money and effort on stuff that won’t be relevant to their situation. Time, money and effort that would be better used in a focused manner.
4 ways to waste your time in the family court
1.) Submitting unprompted character references
You do not have to prove your innocence. Anyone who feels it is relevant needs to prove your `guilt’. Furthermore character references from family members, relatives, etc. are a complete waste of time unless the court has asked for them. And that is rare…
Think about it. Would you submit something to the court saying you are an awful person? From a loved one? Something that is going to damage your own case? Nope. And the court takes this as read.
2.) Labelling your ex
It doesn’t matter if your ex is a Narcissist. Or an awful parent. Neither is it relevant if he/she is a Parental Alienator.
Focus purely on the impact of your children of any inappropriate words or behaviour.
3.) Submitting irrelevant information to the court
Don’t dilute your own argument by talking about or sending the court information that has no bearing on the case. 238 pages of text message arguments doesn’t strengthen your position. It is more likely to hide relevant stuff among it all. It’ll likely make you look like an obsessive nutter too. Besides…bundles are restricted to 350 pages.
4.) Doing stuff because `it’s the principle’
This is the best way to get the judge/magistrates, the legal advisor, your ex’s representative and your ex to roll their eyes and mutter something obscene under their breath. The court isn’t there to deal with anything other than the best interests of your child.
It’s natural to feel like this of course.
But ask yourself when you do – `Does this matter? Is it in the best interests of my children? Am I making things harder with no tangible benefit?’ If the answer is `yes’ to any of these…think again.
…a story from the near future when there is a presumption of 50/50 Shared Care:
`…newly appointed President of the Family Division Sir James Holman has issued new Practice Guidance in relation to the quantum of time children spend with their separated parents. All courts have been advised that any parent wishing to depart from a routine that provides children with equal amounts of time with each parent will be required to demonstrate why this view is in line with the paramountcy principle. Fathers rights groups hailed this as a major step forward, whilst Women’s Aid…’
`Hello, Family Law Assistance – how can we help?’
`Hi there. I’m looking for advice. I separated from my ex 3 months ago. She won’t let me see the kids. I’ve told her that the law means they are meant to be with me for half the time but she won’t listen’.
`Have you tried mediation? It’s always best to try to avoid court and besides it’s a requirement if you are going to make an application.
Contact National Family Mediation and organise to meet them. You’ll attend a MIAM. If mediation doesn’t work you’ll need section 14 of the C100 signed and stamped in any case’.
`Already done that. I went to the MIAM’.
`How did it go?’
`She went to the first one but said she wouldn’t agree to anything more than the kids seeing me on alternate weekends and mid week contact. Because there’s 50/50 Shared Care now isn’t there? She didn’t listen and refused to go to another session’.
`You’re right. There is a presumption of 50/50 Shared Care now’.
`OK thanks. She told me I had committed DV against her and abused the kids which is why she won’t agree to anything else. Will the court ignore that?’
`Allegations made will either be ignored, or you’ll be asked about them. Possibly order a Finding of Fact’.
`Will that slow things down? Will I get my kids half the time until then?’
`It’s unlikely at this stage. The court has an obligation to investigate allegations. Since the changes to Practice Direction 12J were made last year however contact may be difficult for the moment’.
`I was told that if the kids are with her and not seeing me it’ll make things harder for me to get 50/50 is that true?’
`The court has to work in the best interests of the child and if they’ve not seen you for a long time it may want to work on a schedule of increasing contact…’
Sound familar? How would a presumption of 50/50 work?
Christmas contact if you have a hostile ex partner is…special. OK, OK – Christmas is meant to be special. But not in that way, eh?
If you’re not seeing your kids over Christmas it can be just about the worst time of year. A time of year you quite frankly want to see the back of. You want everyone to put away the tinsel, stop banging on about it being `for the kids’ or anything else to remind you that you’ve been thrown out of `the parents club’.
You want it gone. The New Year to start. And to get on with life.
If the above sounds scarily familiar or likely to occur you have time to do something about it.
But not long.
Deal with Christmas contact issues now
Along with the summer holidays we always get a rush of calls in December from parents who realise they’re not going to see their kids on or around the 25th. By the time they do…it’s too late. We can’t help. Nor can anyone else.
It’s because the the court staff are taking time off for the holidays…and spending time with their kids. And because other people have anticipated the very problems that we’re discussing here and have beaten you to it.
They are going to avoid the situation of being told by the ex there is going to be no Christmas contact and if you don’t like it you can take him/her to court for it….which in reality will be when you’re throwing out the left over turkey at best and after ringing in the New Year at worst. You’ll get a court date at some point in January to discuss you wish for Christmas contact – we’ve seen it happen.
It’ll be too late.
How to make sure Christmas contact happens
So assuming Christmas contact isn’t specified in order, you need to work on things now. The same applies if the ex tells you you’re not seeing the kids over this period or refuses to discuss it at all.
Complete a C100 form for a Specific Issues Order. You’ll be applying for contact over Christmas this year as well as order that provides for Christmas Contact for every year going forward.
Hand deliver the forms and submit your fee. You can always chance your arm at an emergency ex parte hearing for the same later down but this is risky and you may well find yourself turned away being told you shouldn’t have left it too late (and it’d be a fair point…).
If you do nothing, nothing happens. It’ll be you sitting alone. Make sure that doesn’t happen.