Mum or Dad – When can a child vote with their feet?

Have you ever wondered at what age a child can decide which parent to live with in case of separation? Typically, older children are asked for their preferences. However, it doesn’t mean younger children cannot have firm opinions on the matter. Let’s study the Children Act 1989 and the child’s voice to learn more about this matter.
 
The legal age for a child to decide which parent they want to live with
In the legal world, there is no fixed age to determine when a child can voice their preference regarding where they want to live. However, they cannot legally decide who they want to live with until they are 16 years of age. Once they reach that age, they can choose which parent to live with. The exception to this rule is a Court Order that mandates them to live with one parent until they are 17 or 18.

If you and your ex can agree on where the child will live, you can avoid costly and exhaustive court battles. But if you cannot do that and have applied for custody, the judge will take your child’s opinion into account as long as the court deems them to be at an age where they understand the situation, which is typically when they turn 12 or 13. However, the age bracket can vary from child to child. The court might also consider a child’s wishes under 12 but will give less weight to them.
 
The Child’s Welfare Checklist
In family law, the significant consideration is to come to a decision that serves the child’s best interest. It’s why the court and other involved professionals must refer to the following criteria of the welfare checklist in Section 1(3) Children Act 1989:
  • The discoverable wishes and feelings of the child
  • The child’s educational, physical, and emotional needs
  • How the court’s decision and impending lifestyle changes will affect the child
  • The child’s age, sex, background, and anything else that might be relevant
  • Any harm the child has already suffered or is at risk of suffering
  • The capability of the parents or guardians meeting the child’s needs
  • The court’s powers in the given proceedings
 
CAFCASS’s significant role
Children are not expected to go to court or speak to the lawyer or judge in these cases. It’s why the court obtains a report from the Family Court Advisory and Support Services (CAFCASS) that deems whether it’s appropriate to speak to the child or children of a broken family. They ensure to approach the topic with the utmost care and age-appropriate way. They will ask the child how they feel about their existing arrangement and if they would like to spend less or more time with either parent. The CAFCASS officer will keep the child’s age and responses in mind when giving their recommendation to the court.
 
Equal parenting rights
In cases in which the child was born after 1st December 2003, both parents were equal parental responsibilities. However, if the father is not named on the child’s birth certificate, he will not be held responsible for the child.
 
The responsibility can be recovered by entering a Parental Responsibility Agreement or applying to the court for a Parental Responsibility Order. Without parental responsibility, a father cannot have any say in their major life decisions, such as change of schools, child’s medical treatment and relocation, etc.
 
Seek family law solicitors
If you cannot reach an agreement with your ex about your child’s responsibility and whom they should live with, reach out to a reliable family law solicitor. An experienced solicitor will guide you to consider your child’s needs and how your on-going conflict could affect them.
 
They will encourage you to choose mediation, a process that will allow both parties to discuss child arrangements under the guidance of a specially trained mediator. It will enable them to reach a mutual decision about the primary caregiver and agree on how much time their child will spend with the non-resident parent. If mediation does not work, you can send a letter to the other party detailing the terms that suit you. If that does not work either, you will need to apply to the court for a Child Arrangement Order. The court will consider CAFCASS’s report and take the voice of the child into account. The ultimate decision it makes will be to serve the child’s best interest.
 
Salam Mediation will help you reach a decision about your child’s custody. We offer our expert mediation services to families to help them resolve financial, parental, and other conflicts. Our mediators provide confidential and impartial guidance to help smoothen the mediation process. 
 
A child’s decision can change their living situation
If the court orders the child to live with one parent, but the child wants to live with the other, the parents can agree on that outside of court. However, this comes with the parent’s risk with primary care changing their mind and keeping the child with them. In such cases, an application to the court will become vital to attain a revised court order.
 
The bottom line
The Children Act 1989 dictates that a child can willingly and legally leave a parent’s house without permission at 16. However, the parent will be responsible for them until they turn 18. It does not specify the age at which a child can decide which parent to live with.

End the Blame Game: ‘No-Fault Divorce’ is on its way

The Divorce, Dissolution, and Separation Bill – welcoming no-fault divorces in the UK
The UK is all set to enforce a Divorce, Dissolution, and Separation bill that will finally ensure that divorcing couples don’t have to blame one another for the breakdown of their marriage. This bill, meant to be enforced on 6th April 2022, will welcome no-fault divorces in the UK and reduce family conflicts between divorcing individuals.

This divorce and separation bill is inarguably the biggest shake-up in divorce laws in more than 50 years as it will directly target the archaic blame game, which has been part of English divorce law since 1660. The new bill will give way to no-fault divorces, which have been the norm in jurisdictions worldwide, such as the US, Australia, Canada, etc.

Let’s explore the divorce bill in more detail!
Currently, one of the partners has to make an accusation regarding the conduct of the other partner, citing unreasonable behaviour, desertion, adultery, etc. Otherwise, they will have to face years of legal separation (at least two or five years) before the court will grant them a divorce. The same is true for mutual divorces.

Out of every five marriage dissolution petitions from the past three years, almost three depend on conduct-based evidence and two on separation-based rulings. From 2016 to 2018, behavioural complaints accounted for 46.7% of all the petitions (47.1% when combined with adultery.)

The new bill, first introduced in June 2019, has now been brought up again following the general election. It aims to remove this blame game from the equation as it will allow either spouses or both to make a statement of their divorce. This reform that is set to take effect in April will prevent one of the divorcing parties from contesting the divorce in most cases when their partner wants to end the marriage. It will prevent domestic abusers from exercising control over their victims.

An overview of the bill
This reform will help divorcing couples separate amicably instead of exacerbating their conflict, which will also affect their child if they have any. It will help the family move on with their lives and enables the ex-partners to form a healthy co-parenting relationship.

According to academic research, the US saw a one-third decrease in domestic violence and a 10% decrease in the murder rate of women by their partners in states that followed the no-fault divorce after Ronald Regan introduced the country’s first no-contest divorce in 1969.

The Divorce, Dissolution, and Separation Bill will:

  • Replace the blame-game with a statement of irretrievable breakdown
  • Strip away the power of contesting the decision to end the marriage from either party
  • Introduce a minimum period of 20 weeks between the start of the proceedings to the court’s confirmation of divorce

The government will also make parallel changes to the law governing the end of a civil partnership as it largely mirrors the legal process taken for the dissolution of marriage. Lastly, the bill will not apply to other areas of matrimonial law, such as the division of finances, as they are handled in separate court proceedings. With that said, this monumental bill is undoubtedly a welcome change in divorce laws that have been in existence for centuries now, and it will welcome the era of no-fault divorces in the UK!

Further reading:
Government website: Divorce ‘blame game’ to end
Resolution: Get ready for no-fault divorce

How do Muslim women pursue divorce in the UK?

Marriage is considered a significant part of the Muslim faith, and young adults are encouraged to participate in it as a part of their religious actions. It is a religious act that pleases Allah and offers young Muslim individuals a chance to grow their faith through a Nikkah (marriage).

Unfortunately, as with all marriages, Muslim marriages do not always work out. There are numerous reasons why Muslim women in the UK would wish to pursue divorce. It could be a simple reason like finding out they simply don’t get along with their husband or a cause of concern like domestic violence.

Whatever the case may be, Muslims marry and divorce based on the customs, traditions, and laws of their countries of origin. As discussed by Dr Islam Uddin (PhD Candidate, School of Law, Middlesex University) in his research on Muslim Family Law, marriage is considered as a binding ‘religio-legal’ contract between two individuals upon their Nikkah.

On the other hand, English law follows a monolithic system in which marriage and divorce are both legislated in accordance with Marriage Act 1949 and Matrimonial Causes Act 1973. This means that a marriage will only be considered valid in the UK if it takes place in an approved building and is certified by an authorised individual.

Unfortunately, this is where the problem occurs when women try to pursue a divorce in the UK. Since ‘Nikkah only’ ceremonies are unregistered, they have no legal recognition in the UK. In his research, Dr Islam Uddin points out how these unregistered marriages can cause women great grief if they try to pursue divorce as they can’t reach out to family courts. 
 
Understanding Islamic divorces
In Islam, women are given limited measures to seek divorce. If their husbands refuse to give them talaq, they are required to reach out to a religious authority to be released through khula or faksh. Since the Muslim community doesn’t accept secular divorces, women with a civil divorce are still considered married as per the Islamic community. This can create endless problems for Muslim women who wish to exit toxic, harmful marriages and start a new life for themselves. That is why Dr Islam Uddin carried out his research on how Muslim women pursue a divorce in the UK. He also analysed the problems they face and how the community reacts to such decisions.
 
The candidates of his study included 2nd-gen British Muslim women residing in London. Most of these women were in their mid-thirties to early forties, and they received a formal British education while also continuing forward to go to college. Despite these positive circumstances, participants pointed out how they weren’t allowed to leave their house or even talk to people on the ‘outside’. Their mothers-in-law had issues with the marriage, and there were instances of cheating as well.
 
Most Muslim women experienced increased pressure from their families to reconcile with their husbands, and some were even told that divorce simply wasn’t an option. This is a common occurrence in Muslim families across the globe, as divorce is seen as an embarrassment to the family, and their reputation is ‘tarnished’. 
 
Issues faced by Muslim women seeking divorce
In the research, Dr Islam Uddin points out how the divorce process for couples with a civil registered marriage differs. Some prefer opting for a civil divorce before seeking out a religious divorce, while others do it the other way around.
 
Limited knowledge 
Numerous participants mentioned how they barely had any information regarding the civil process and had to depend on others to make sense of it. A woman mentioned that her husband simply walked out, and she later heard from his solicitor, which was quite a frightening experience. Another candidate mentioned that her husband gave talaq, but she still had to get a civil divorce done to officiate the end of her marriage.  
Unfortunately, people don’t always realise the proper way to give talaq. One of the participants recalled being separated from her husband, who one day came and sat her in the car only to say ‘I’m divorcing you’ thrice. This isn’t the right way to give an Islamic divorce, but most people don’t realise that.
 
Forceful reconciliation 
Even Imams and Muslim scholars tend to get it wrong when it comes to the correct way of giving an Islamic divorce. Women are often asked to seek help from the mosque or reach out to an Imam, who will then try to get the couple to reconcile instead of offering the right advice to proceed with the divorce. In the study, a woman was even told that domestic violence wasn’t a good enough reason to seek a divorce, which is absolutely outrageous and a clear misconstruction of Islamic laws.

“Give women ‘you wed’ their due dowries (Mahr) graciously. But if they waive some of it willingly, then you may enjoy it freely with a clear conscience..” (Quran 4:4)

Islamic marriages require the groom to pay mahr, which is any kind of monetary good, property or even service, to the bride. The mahr should be paid to the bride either before the Nikkah or any time the bride demands it. Moreover, the mahr becomes the bride’s property solely as soon as the marriage is consummated.

One of the biggest issues that Muslim women face is getting their rightful mahr. Muslim men are required to pay mahr before the Nikkah, but this isn’t common practice in the Asian subcontinent. This creates a classic case of culture and traditions taking precedence over Islamic teachings, and most women end up losing out on their mahr because the men simply refuse to give it.

Women usually just abandon the mahr and end the marriage because they simply cannot stay stuck in this loop forever. The Imams and the mosques should emphasise the need for men to pay mahr and make it a mandatory condition of the marriage. Additionally, Dr Islam Uddin’s study discovered that most of these men who portrayed themselves as broke and unable to pay ended up remarrying rather quickly. They faced no backlash or questioning from the Muslim community, while the women were labelled and considered solely responsible for the divorce.

The need for reconciliation services 

In the study, numerous solicitors and even Imamas agree that couples need counselling before their problems escalate to an unsolvable measure. Unfortunately, seeking marriage counselling or mediation is considered shameful in the Muslim community. This causes most couples to fight out their issues instead of actually resolving them, leading to divorces.

It is also important to note that family involvement in the marriage only makes things worse. Women turn to their families for support but end up being told to let go of the issues and bear with them for the sake of the marriage. They will quote from the Quran that issues in a marriage should be mediated by the family, not realising that ‘family’ in this context refers to someone trustworthy who has extensive knowledge of the religion.

Only people who truly understand Islamic rulings while also knowing the couple individually and coming from a similar culture can mediate Muslim marriages. 

However, if the couple realises that they simply cannot stay together any longer, the families are supposed to accept their decision. That is where Salam Mediation comes in to offer Muslim couples the mediation services they need to ensure a smooth divorce process. 

Reach out to us today for further help or guidance regarding a divorce support.

How do muslim women pursue divorce?
As per the study, Imams pointed out that Islamic divorces are simple and quick; however, there is a difference in opinion when it comes to the status of a civil divorce as compared to an Islamic talaq. The Hanafi (one of the schools of jurisprudence) opinion concludes that a husband signing consent is enough for an Islamic divorce, but other sects disagree. Additionally, an SC Judge pointed out that husbands can contest the divorce, which requires them to apply Islamic jurisprudence to the matter.

The study concluded the narratives of the women and experts were quite similar, and there was a clear problem in the way Muslim men proceed with divorces. Most men fail to act responsibly in such circumstances, and this is only fueled further by a lack of knowledge about Islamic talaq.


Reach out to Islamic mediation experts 

At Salam Mediation, we understand how difficult a divorce can be, even without any complications. But, when certain complications do enter your divorce proceedings, it makes matters so much tougher. 

Therefore, we offer expert mediation services to guide you every step of the way. From financial settlements to parental responsibility arrangements etc., we will be your rock through the civil and Islamic divorce. 

Further reading:
What are Muslim women’s options in religious divorce?

Muslim Marriage and Divorce Practices in Contemporary Britain