Extra home

Fathers often believe that they are at a disadvantage when a court decides who their children will live with, but parents do start off on equal terms.

There is no particular magic in being a mother when it comes to a disagreement over custody - every child is an individual, with his or her own personality and circumstances. The court will do everything it can to make a decision in the child's best interests, which means taking all of the circumstances into account.

The court does often find that a baby or a very young child will be more suitably cared for by its mother, but this isn't always true. Many dads are equally capable of caring for their children from babyhood and some mothers do not provide the best care. Each case will be decided after investigating all the circumstances including the feelings of the child, if he or she is old enough to understand what is going on.

As children grow older, the tilt of the scales in the mother's favour becomes less significant. Another factor which will be taken into account, if it is the case, is that the mother may be available on a full-time basis to care for the children whilst the father has a full-time job. Again, each case depends on its facts. The important thing will always be to discover what will be in the best interests of the child.

To answer this, ask yourself these five questions:

Is your divorce contested or uncontested?
If you and your spouse agree that you should divorce, your divorce is 'uncontested'. The vast majority of divorces are uncontested. You do not necessarily need a solicitor unless you disagree on other issues, such as the maintenance to be paid or how your property will be divided. If one spouse is unwilling to divorce, the divorce is 'contested' by that spouse. In this case, you'll need a solicitor to work out whether there are grounds for divorce.

Do you have minor children?
Some of the most important issues in divorce involve the welfare of any children under 18 (known as minor children). Because these issues are so important, the court will be concerned that what has been decided is in the best interests of the child. If you have children, you should ask a solicitor to approve the agreements that you and your spouse have made for them. An experienced solicitor can guide you to a settlement that the court will approve for the children.

Do you have property that can be divided easily?
If your divorce involves deciding who, for example, keeps different items of furniture, you should be able to resolve these questions without a solicitor. If you own substantial property, you will want a solicitor to make sure you receive your fair share and that the way your property is divided is tax-effective.

Do you need or expect future support from your spouse?
If you'll be financially dependent on your spouse after the divorce, you may need a solicitor to help you negotiate how much you'll receive and to get this agreement legally protected.

Are you sure you have proper grounds for a divorce?
Your rights to a divorce are not automatic. You must show one of 'five facts' which have affected your marriage.

You or your spouse may want to divorce, but before you can obtain one you must satisfy these legal requirements:

In England and Wales
You can only divorce if you have been married for at least one year. There are rules on jurisdiction which govern whether or not the courts of England and Wales can grant you or your spouse a divorce. If you have both lived in England or Wales for the year prior to the divorce, then there should be no difficulty. If this is not the case, then you may well still be entitled to a divorce in the courts of England and Wales but it may be wise to consult a solicitor on this point.

In Scotland
You or your spouse must have resided in Scotland for the year preceding the divorce, or consider Scotland your principal place of residence.

In England, Wales and Scotland, there is only one basic ground for divorce - the irretrievable breakdown of the marriage. Irretrievable breakdown is proven by establishing one or more of the following 'facts':

1. Adultery
2. Unreasonable behaviour
3. Desertion
4. Two-year separation when both consent to divorce
5. Five-year separation in which case no consent is needed

In some recent cases, fathers have been given custody of the children where it is the mother who has been the breadwinner, while the dad stayed at home acting as 'househusband'.

These cases don't show any change in the approach of the courts to residence disputes, they're just examples of the court deciding what is in the best interests of the children concerned based on the individual situation.