Divorce: Arrangements for Children
You may ask the Court staff for information regarding Court procedures, but Court staff are NOT allowed to offer legal advice or advise you about your different legal options.
Why it is better to reach agreement
Before beginning divorce proceedings or separating from your spouse, one of your first concerns will be about your child[ren]’s future. When you separate, you will both continue to be parents.
Try to reach agreement with your husband/wife as to arrangements for the children as a constructive approach through the divorce or separation will help the children to adjust to the changes.
As you know your child[ren] best, you should be best able to consider how the break-up of your marriage will affect them, and to make arrangements which best suit their needs. It is better for you to sort matters out yourselves if at all possible, but if you cannot agree on the arrangements, you may be able to sort these out by attending mediation.
Parental Responsibility
As you and your spouse are both parents, you both have parental responsibility, that is, ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.
The Statement of Arrangements (Form 5)
The person starting any divorce proceedings (“the petitioner”) will need to submit a completed Statement of Arrangements for the Children, Form 5.
Before doing this, the petitioner should try and reach agreement with his/her spouse (“the respondent”) about those arrangements. The Court will need to know about the child[ren] born to you and your spouse, or any child[ren] treated by you as though they were yours (known as “children of the family”). These include adopted children, but not foster children.
A. What happens if agreement is reached?
The respondent is served with the divorce papers, including a Form 4 Acknowledgement of Service and the Form 5 Statement of Arrangements for the Children. If the respondent agrees with the arrangements for the children, he/she must sign and date Form 5.
Both Forms 4 and 5 are then returned to the Court, and copies are then sent by the Court to the petitioner (or to the petitioner’s lawyer). The petitioner (or the lawyer) then applies for ‘the Greffier’s Certificate’, enclosing the relevant documentation. If the Family Judge is satisfied with the paperwork, he/she issues the Greffier’s Certificate and, if the petition is undefended, sets a date for the pronouncement of the Decree Nisi.
If the Court is satisfied about the arrangements for each child, this is stated in the Court Minutes, and a Certificate of Satisfaction will be issued to you. Six weeks and a day after the pronouncement of the Decree Nisi, the petitioner can apply to the Family Judge for the divorce to be made absolute. If he/she does not do so, the respondent may apply three months after the decree nisi by filing a summons. There may be special cases of urgency when an earlier application may be made.
The divorce will not be made absolute unless the Family Judge is satisfied with the arrangements for each child of the family, or unless there are circumstances in which it may be necessary to make the divorce absolute without delay, and there is an undertaking from both parents that the arrangements about the children are to be brought before the Court within a specified time.
B. What happens if you cannot reach agreement about your child/ren
The respondent can file his or her own Statement of Arrangements (also in Form 5), and negotiations can take place to try and reach agreement about the arrangements. However, if this is not possible, either parent can ask the Court to decide on matters of dispute.
The Court will not make any order relating to a child unless it is satisfied that making an order would be better for the child than not making an order.
Even if Court proceedings have started, you can still continue to try and reach agreement with your spouse and attend mediation.
If you are unable to reach an agreement, one or both or the parties can make an application to the Court to decide the issue in dispute (see section re Children)
The Law and Rules