Header image  
Divorce Specialists  
line decor
  
line decor
 
 
 
 

 
 
FACTORS AFFECTING MEN IN DIVORCE AND WHY (6)

It will be remembered also that the divorce process is divided into three parts: (1) the divorce itself, (2) ancillary relief and (3) any proceedings relating to children. The key question in each part is quite different. In the case of the divorce the key question is whether the marriage has irretrievably broken down. For ancillary relief the key questions are set out in Section 25 of the Matrimonial Causes Act 1973 and, basically, amount to what the respective needs of the parties are. In disputes involving children the central issue is quite different again and it is important to understand this.

Where children are involved the central question is what is in the child's best interests. The welfare of the child is paramount and that is always the guiding light by which a court operates. This causes problems to parents if they do not understand this is the ONLY issue so far as children are concerned. Take the following examples:-

(a) A father does not think his wife should have custody of the children because she has committed adultery. In his eyes she is "an unfit mother" or, alternatively, she should not have custody of the children because she does not deserve it after what she has done. This reasoning is bound to fail. An adulterous mother (or father) can still be a caring parent and adultery as such usually has hardly any impact upon what is in the child's best interests so far as residence is concerned.

(b) A mother does not believe the father should have contact with the child because he does not pay maintenance. Again, this is wrong. A skinflint father can still be a caring father and contact is granted for the benefit of the child. The child may benefit from contact with his/her father regardless of whether maintenance is paid.

(c) The father is a thief who has spent time in prison. Again, it is likely that he will be allowed contact with his children if he wishes it. The contact is granted for the benefit of children rather than their parents and there is a general presumption that contact with both parents is a good thing. It takes truly exceptional circumstances to displace this presumption.

In point of fact, there are obvious patterns which are noticeable to anyone who has experience of these matters. Young children tend almost invariably to live with their mother but as they get older what they want matters more and more. If an older child wishes to live with one parent rather than another then, ultimately, that is what will probably happen. There is also a strong presumption not to disturb the status quo unless the reasons are truly compelling. This is another reason why children tend to stay with their mothers.

More often than not it is the husband who leaves the matrimonial home - whether as a result of choice or following an injunction. The children tend to live in the same place, to attend the same school and to play with the same friends. It would have to be exceptional for a court to disturb this and say the children ought to go to live with their father elsewhere, attend a new school, make new friends etc.

Something which does cause a great deal of grief is the following scenario. Husband and wife are divorced. Children live with mother and have contact with father on a regular basis. Mother then meets someone else and decides to move to another part of the country or even abroad to be with her new partner. She wishes to take the children with her and, indeed, to continue to receive maintenance from their father for the children's benefit even though in practical terms it means father is now very unlikely to see his children at all regularly. Many fathers feel very bitter about this scenario and understandably so.

There is, indeed, a certain amount of tension in this case about preserving the status quo because a major part of it is going to change. In the case of older children it would be difficult to force them to go with their mother if they expressed a clear and strong wish to remain with their father but more often than not the father has to accept that he will no longer see the children on a regular basis. A court will not order the mother not to relocate and so the father has to accept what is undoubtedly a very difficult situation.

The other problem which undoubtedly causes a lot of anguish is the question of child maintenance. In point of fact, every parent has a legal duty to support their children while they are still dependent and that has always been the case. Most parents would not quarrel with that. What happened with the creation of the Child Support Agency (CSA) was that many fathers regarded it as having far too great a power over their income. It is now the CSA which deals with most child maintenance cases although its power is not exclusive. In particular, the courts retain power to vary child maintenance orders which were previously made by a court and they have the power to award more maintenance than the CSA has power to award if the financial circumstances justify it. The courts also retain jurisdiction over child maintenance in those cases where the CSA does not have jurisdiction, for example when the absent parent lives outside the UK.

These half dozen web pages on divorce as it affects husbands should make it clear that many husbands are likely to come out of the divorce process feeling aggrieved. The system is weighted against them in different ways although, of course, one can argue about whether or not that is proper. The point remains, though, that divorce can lead many men to feel that they have suffered major injustice and some of the factors above explain why this happens. This does not mean to say that nothing can be done about it. In particular, it is very important for the man not to make a bad situation worse and it is essential that he receives sound advice at an early stage. There are pitfalls which can be avoided and there are ways to minimise the damage but that almost certainly requires professional advice. It is all too easy to stumble along in this process until at the end of the day the man is left with an overwhelming sense of grievance against his ex-wife, the lawyers, the courts and the CSA.

 
 

 
CONTACT

Do email if you have a specific query.