Posted by Kit O'Brien, Senior Associate
You say potato – solving some of the confusion about terms used in family law
We understand that legal issues around relationships can be worrying and confusing. There’s also a great deal of terminology that is commonly used but actually completely wrong or outdated. If you’re trying to search online for help that can make it even more difficult for you to find what you need. This blog sets out some of the things that people say, and what the really mean!
When parents separate they still think that one of them will have “custody” of their children and the other will have “access”. Neither of those terms apply anymore. It is likely that both parents will have parental responsibility for their children if both are named on their birth certificates and they will keep that whether they are married or unmarried, separated or divorced. There is no need for any orders to be made to regulate how children split their time between their parents if they’re living apart. If the parents can’t agree, either parent can apply to the court for a child arrangements order so that the court can decide how their time should be divided.
As a family solicitor I often get asked on whether ‘alimony’ will be payable. I blame the influence of American TV for this one! What you want to know, if you’re getting divorced, is whether you will have to pay spousal support or maintenance to your former spouse separately from any payments that have to be made for children. There’s no set formula for working out spousal support. Wherever possible there should be a complete clean break between divorcing spouses. No two cases are the same however and you need proper advice whether you’re a potential payer of support or a potential recipient.
A restraining order is an order made by the criminal courts where someone convicted of an offence against another person is also subject to an order preventing them from further inappropriate behaviour.
In the context of family law however what you need to be asking about is an injunction. Injunctions are orders that can be made by the family court to prevent domestic violence by one party towards another (a “non-molestation order”) or to regulate the occupation of a family home if necessary (“an occupation order”). We have specialists in domestic violence who can tell you whether the court will grant you an order and if appropriate help you to get one.
Common Law Spouse
We see too many people who have been in lengthy unmarried relationships and who want to talk about financial support when their relationship ends. They are assured by friends and family that they will be fine because they have lived together for the right number of years to be considered common law spouses. The length of time believed to be relevant varies but it doesn’t matter how long you have lived together as cohabitees, there is no such thing as a common law spouse. If you’ve shared a home, your claims against the property will depend on whether you are a joint owner of it or whether you can establish that your contributions justify your having an interest in it. You have no claims for maintenance for yourself even if your partner has financially supported you. There is no duty of financial support between cohabitees.
If you think you need help with any of the issues above you now have the correct terminology. But searching online, even with the right search terms, is no substitute for full and proper legal advice. Our family law team is specialist and experienced and we make sure you get realistic, pragmatic and cost effective advice at what we recognise is one of the most difficult times of your life.
To speak to an experienced family solicitor contact Kit O' Brien from our family law team
01793 847 777 Email us
Family law solicitors who combine expertise with understanding