We asked Kate Brooks to offer us some thoughts on this word “residence.” It is a word, especially in the world of family law, that continues to cause some confusion…
…When the words “custody” and “access” were replaced with “residence” and “contact” I think we all believed that progress was being made and the new terminology was designed to be less emotive. This, combined with the “no order” principle, was designed to encourage families to decide between themselves where the children should live following separation and how and when the other parent should see the children. It was hoped that all this would be achieved without involving the courts.
Although most would agree that progress has been made, there is still room for significant improvement and clarity about what “residence” really means.
Its most simple definition is that residence means where the child lives. The reality is that it is much more than that because it is the resident parent who has all the power and as soon as one of the parents becomes the “non resident parent” they lose equal status and often have to resort to the courts if they don’t like what the newly acquired power of the “resident parent ”dictates.
Without duplicating the contents of the excellent blog of my colleague Kat McTaggart on shared residence, one of the most obvious difficulties with the definition of the word residence is that children increasingly spend significant time with both parents following separation. If asked, the children may well say that they live with both their parents and this works very well for many families. Shared residence has increased significantly over even the last five years and is a far more accurate reflection both of the reality of post separation for many families and perhaps more importantly, a fairer reflection of the position before separation.
Families, whether they stay together or separate are constantly going through changes, whether it involves moving house, of who is working, change of financial circumstances; the list goes on. However, as soon as families separate, the current system seems to harp back to some kind of 1950’s nuclear family where there was a more defined role of breadwinner and primary carer. As a family lawyer, I am finding it increasingly difficult to identify which party is the primary carer at the point of separation, particularly when the children are a little older. Each party will have a very different view of their contribution and it seems to me that to label one of the parties the primary carer and the other the non-resident parent is far more likely to cause problems than to set a framework for the best outcome for the children.
I agree that we do need to use shorthand and labels sometimes so that we can be clear about decisions for the children following separation but the word residence does create a two tier status which I do not believe was intended. Changes are afoot to replace the word “residence” to “where the child lives”. I am not sure that this is going to help a great deal. In my view, the better option is to assume that there will be a shared residence arrangement unless impractical, albeit that the time spent in each household may well not be equal. The financial impact of dealing with working around the needs of children can be dealt with in the financial settlement without giving undue power to the so-called primary carer and inadvertently penalising the so-called breadwinner.
Written by Kate Brooks, divorce solicitor with Woolley & Co, family law specialists. Kate works with many parents who are separating and trying to negotiate the difficulties around residence and shared parenting. For more details visit www.family-lawfirm.co.uk.