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Never underestimate the importance of the ‘Status Quo’

When relationships break down, amidst the hurt (and often anger) it is very easy to take immediate action based on an emotional response to the situation. Whilst many of us are led by our hearts (rather than our heads), it is crucial when it comes to family breakdown, and matters relating to the future care of your children that you fully consider the implications of the action you are proposing to take before taking action.

Below are six key examples of where it is important to take early advice before taking steps to change the status quo:

1. If you are thinking of moving out of the family home…

...think carefully! Whilst it might be terribly unpleasant to remain living under the same roof as your partner following a family breakdown, it is important to be mindful of your longer-term goals before upping sticks and moving out. This is particularly true if you are unsure as to your legal status in relation to the ownership of the property. You need to establish your legal position before making any decisions.

If your ultimate goal is to remain living in the property in the longer term, if you have moved out straight away you may be giving your former spouse or partner the opportunity to establish a new status quo with them living in the property to your exclusion. Often it can be an uphill struggle to reverse the arrangements.

You also need to consider the impact financially of being able to maintain two properties as you will (in the majority of cases where there is jointly owned property) continue to be jointly and severally liable for the mortgage payments on the family home, as well as any new rental property or other liabilities you take on.

Similarly, if you have children and you move out of the family home leaving the children with the other parent for the majority of time, you are likely to find that you become liable for making child maintenance payments to the other person. More importantly, you are creating a status quo whereby the children are living with the other person and spending time with you and this may not be an arrangement you are content with in the longer term.

2. If you are considering changing the locks on the family home to prevent the other person from returning home…

…this can often be a futile exercise serving only to inflame an already difficult situation. Certainly, this is not a step we can advise you to take, unless you are in fear of your safety or the safety of any children in your care. Secondly, how this situation pans out is largely dependent on the legal ownership of the property. Generally speaking, in this situation, if you are locked out of a property of which you are a legal owner, it is not considered criminal damage for you to force entry.

These situations often involve the Police being called to assist one party with the re-entry to a property. The police are often reluctant or unable to assist if the party trying to gain entry is the owner of the property or the dispute is considered to be the result of a domestic dispute as opposed to a civil dispute about property.

3. If you are contemplating emptying joint bank accounts or selling joint assets…

…think again! If there are substantial assets at play this could be a dangerous step as it may prompt the other person to rush off to court to seek a freezing injunction to prevent any further dissipation of assets ahead of your matrimonial finances being resolved. This could leave you without access to funds when you need them and you may find yourself on the receiving end of a costs order (an order of the court to pay the other person’s costs incurred in making the application for a freezing injunction). This is likely to increase the tension between you and create an additional barrier towards reaching financial settlement.

If you sell a joint asset, you may find that you are required to disclose full information about the sale and either return the sums received, or give an undertaking (formal promise) not to utilise the sums received or provide the sums to your solicitor for holding pending resolution of your finances.

If you have already spent some of the liquid capital or spent any money received as a result of selling an asset then the court can still consider you to have had the benefit of that money and notionally add it back into your share of the ‘matrimonial pot’ (despite you having already spent it) when considering the overall division.

4. If you refuse to let one parent see the children or decide to retain the children beyond the time agreed with the other parent…

…it may result in an application to the court by the other parent. There is a presumption that it is better for a child to have both parents in their life, unless it is proved to the contrary that it is not in the child’s best interests. The threshold for proving this is high so, unless you can show a very good reason for stopping the other parent from seeing the children, a court (or any social services involved) will usually look to find a way for contact to take place.

In this scenario, you may find that you are presented to the court as having been deliberately obstructive towards the child’s contact with their other parent. The court often take a tough approach in cases where they are persuaded that one parent’s actions in stopping contact relate to their own feelings towards the other parent, rather than their actions being in response to concerns they may have had for the welfare of the child.

Court proceedings usually result in a defined order setting out who the child shall live with and when they should spend time with the other parent. If you had hoped for a flexible approach to your arrangements then this choice may be taken from you once you are in the court arena. To avoid an application to the Court, you should create a positive communication channel with the other parent and respect any agreements you have reached with them. If you want to change the agreements then discuss this with the other parent and see if you can try to find a compromise. Mediation may assist in this situation if you are struggling to discuss matters directly.

5. If you decide to agree to a change of arrangements for the children…

…and subsequently find that the new arrangements are not working for you, you may find it is difficult to go backwards. The court’s paramount concern is the welfare of the children and generally, if the arrangements are working well for the children the court may not be supportive of another change in arrangements, particularly if it is in a short space of time.

Often, a parent will leave the family environment where he or she had an equal share of the children’s care and in the period afterwards see the children every other weekend, for example. Depending on the length of time that the new arrangements take place, it would be difficult to make a case for a better sharing of the children’s care and rely on the previous situation as the court are interested in what is happening now.

6. If you are thinking about leaving the country…

…either for a holiday or permanently, stop and think. If you jet away leaving your children in the care of the other parent you may find the arrangements are quite different when you return and the parent left behind may not be prepared to agree to the same arrangements as before you left. You may also find that if the amount of care you are providing to the children decreases, you are liable to pay child maintenance to the other parent.

If you are thinking of taking a holiday with the children or relocating permanently with the children then this is a much bigger step and you will need the consent of everyone with parental responsibility before being able to take the children outside the jurisdiction (except in some limited circumstances).

This is not by any means an exhaustive list of the problems that can arise following a family breakdown. Change is not all bad and the status quo can sometimes be changed to your advantage. For example, if your partner moves out and you are keen to stay in the family home in the longer term then you may find that this assists your position as the status quo has been changed in your favour (subject of course to the financial landscape of your situation). However, these scenarios do illustrate the importance of seeking early legal advice before taking any drastic steps to change the status quo.

In every scenario it is essential to consider your longer term objectives and the impact your immediate action could have on being able to reach your ultimate goal, whether that be relating to the care of your children or your living arrangements and accomodation. Most importantly, you should never underestimate the importance of the status quo.

© SA LAW 2017

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.