Deciding on a new school can be an especially arduous process at times but it can be even more so when trying to come to an agreement with an ex partner.

So what does ‘parental responsibility’ entail by law and how can separated parents deal with disagreements over schooling?

Parental Responsibility

Even after separation or divorce, parental responsibility involves many things such as medical treatment and choice of religion. Italso includes making decisions about your child’s education.

Legally, parental responsibility automatically lies with the birth mother and the father has parental responsibility if he is married to the mother when the child is born. In the case of unmarried parents, if the father is registered on the child’s birth certificate as their father (after 2003) parental responsibility can be acquired. The father can also attain parental responsibility by entering into a parental responsibility agreement with the mother or applying for a Court order.

Only under rare and extreme circumstances is it deemed in the child’s best interests for parental responsibility to be taken away from a parent. So parents are expected to discuss and come to agreements about important decisions relating to their child’s education. But this doesn’t always happen. They simply may not agree or unilateral decisions are being made without consulting the other parent. 

In this case, what are the options?

Mediation

Mediation may be an option if the case is not time sensitive and can be very helpful. This would be with a trained, independent third party mediator. They will assist in encouraging open and productive communication between the parents to be able to come to an amicable decision. They may even talk to the child to assist in this process, depending on their age.

However, at times mediation may not be effective in which case a Specific Issue Order or a Prohibited Steps Order are options.Both require that the parents try mediation prior to applying for these Court orders. 

Court Orders

A Specific Issue Order is for dealing with a specific matter concerning the child, such as what school the child should go to.

A Prohibited Steps Order is to stop the other parent exercising their parental responsibility unilaterally, such as taking the child out of school or threatening to do so.

The Court’s main concern with these cases is what is going to be in the best interests of the child, so a range of factors will be considered such as the effects of the change, any harm they may suffer and how capable the parents are of meeting the child’s needs.

This will also include the child’s:

• feelings and wishes

• physical, emotional and educational needs

• age, sex and background

And of course, parent’s need to have these considerations in mind as well as many others such as the location of the school and how that affects logistics of child arrangements, the financial impact of changing schools.

So yes, it can be a complicated process. However, it can be helpful to know there are options and help available. To speak to a divorce professional can put your mind at rest and Sara and the team are always on hand to chat through options with you.

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This greatly simplifies the process.

But there are still other things to take care of that can be complex. Particularly when sorting out the finances.

What each party is entitled to differs from case to case. Generally, the types of matrimonial assets that may be included are money, property, businesses, vehicles, financial support (child/spousal maintenance), life insurance policies and possessions such as furniture and appliances.

And of course, pensions.

Pensions

The law allowing divorcees to share pensions came into effect in 2000, yet a very small percentage of people include their pensions in financial divorce settlements. Pensions are pipped to the post by family homes and businesses because their value is often overlooked.

In fact, pensions usually hold greater monetary value than property in the marriage.

Particularly for women. This is because the average man has almost ten times the amount of pension wealth a woman has, according to a recent study.

So a pension sharing order can be of far more use and value to former spouses – particularly women – than property or abusiness.

But it could be, with many going the DIY divorce route, thatdividing pensions seems too complicated to handle. But it can be worth getting the assistance of a solicitor or financial advisor to be able to go this route. 

Multiple Pensions

Preparation is key when it comes to dividing pensions. It is quite common these days to have a few pension “pots” when retiring, such as:

• Workplace pensions

• Any portion of your basic state pension that falls under the Additional State Pension/SERPS rules

• Personal pension schemes, for example Self-Invested Personal Pensions (SIPPs), Group Personal Pensions (GPPs) or stakeholder pensions

It is best for both parties to list all the pension plans they have and to acquire a copy of the rules for each plan so that the value of these can be taken into account in the settlement.

You will need to know:

• The recent values of both your and your partner’s pensions (including the Cash Equivalent Transfer Value of any final salary pensions) and submit a financial statement (form E).

• If there are any other pension benefits available to a spouse or civil partner under these schemes. These could be amounts that would be paid to you or your children when a spouse dies, which may be nullified with divorce.

Pension Splitting

Factors such as pension scheme rules, age and employment status have a bearing on which is the best route for you to go, but here are some of the options that may be available:

• Pension Offsetting

Pension Offsetting is where one person keeps their pension in exchange for letting go of another asset such as the family business or home. Although this allows for a clean break, it can be difficult to make sure the distribution is fair.  

• Pension Sharing

A Pension Sharing Order is transferring a percentage of one person’s pension to the other. The party on the receiving end could become a member of the other’s pension scheme or transfer the value of that to another pension. Having separate pensions is great but financial advice is necessary to navigate this complex process.

• Pensions Attachment

Also known as “Earmarking”, this is when a lump sum or income is paid to the other when they start taking their pension. Similar to maintenance, it can be a fair way to split the pension. However, it also means it’s not a clean break as the pension holder has control over what investments are chosen and when payments are made.

• Deferred Pension Sharing (not applicable in Scotland)

If one spouse is older and already receiving a pension, this is the option to share the pension at a later date.

• Deferred Lump Sum (not applicable in Scotland)

This is when one party, upon retiring, is required to pay a percentage of their tax-free pension lump sum to the other.

• Individual Agreement

It is possible for the divorcing couple to come to their own financial agreements regarding their pensions without involving the court. However, it is best to document what has been agreed to legally and seek professional advice before going with this option.

We hope this has helped shed some light on the subject. For any assistance with this process, please contact us.

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