On Wednesday 16th October 2013, Ayesha made what is her third appearance on the Legal Eagles section of ITV’s This Morning. Once again she joined property law expert Jason Hunter, and personal injury lawyer Alicia Alinia, on the couch opposite Holly Willoughby and Phillip Schofield, to address viewers’ legal anxieties.
Ayesha’s first letter revealed a rare and tragic situation. In 2009, the London-based viewer came home, to find her front door open and her husband gone. She had heard nothing from him since that day. She called the police, who declared him ‘missing’. She had since embarked on a new relationship and had a baby. The viewer now wanted to get a divorce but knew that this would be difficult because of her husband’s ‘missing’ status.
Ayesha expressed her sympathy for the viewer, and was also able to offer some hope: “The good news is that there is a way to sort it out,” she began, continuing:
“She can get a divorce on the basis of desertion or of his behaviour, so she just puts her petition into the court. What she needs to put along with it is a form – a D13B – which sets out why the court can’t give this petition to him. For that, she’s going to need to set out what happened, make clear that she’s made efforts to speak to his family, his former employers, his friends, to try to track him down. If that hasn’t been possible, she should attach the document from the police, showing that he’s missing… and the court should make an order saying fine, you don’t need to serve this document’. Then she can go through the process of getting decree nisi, decree absolute, and then she’s free.”
Holly raised the issue of finances, and what might happen to the matrimonial home. Ayesha made clear that this aspect of a divorce can be messy; even more so in this unusual situation: “That has to be dealt with and it’s quite complicated. You look for orders, trying to determine that someone’s potentially dead or missing, and you have to go through this ‘permission to dispense with service’ process”.
Phillip asked whether there was a period of time after which a missing person will be assumed dead or unlikely to return. “Seven years,” Ayesha answered, “but you can work on shorter periods in different circumstances. It gets quite complicated and you can do different things with different periods in different ways, so it’s quite a fiddly area of law, but there’s always something you can do”.
The second call came from a viewer in Aberdeenshire. Her conundrum was that she is set to marry her fiancé next year, abroad, but has a daughter from a previous relationship, whose father will not give them permission to leave the country. There had been a court order, granting them residency abroad, as he did not turn up to court. The viewer wanted to know what their chances were of getting a court order to allow them to move abroad, and where the best place might be to start the process.
Ayesha felt that the question was a little vague, as regards the court order, saying, “if that was made in England, then that’s giving her permission”. Assuming, however, that the viewer was referring to an order made abroad, she noted that this effectively dictates, “if you are here, then the child can be resident with you”. On this basis she was able to offer some detailed advice:
“What you have to look at is whether the father has what’s called ‘parental responsibility’, which is all the rights and duties appertaining to a child. Mothers always have this; fathers have it if they were married to the mother; if they were put on the birth certificate over the past ten years; if there’s been an order of court that they’ve applied for to get it; or there’s been consent. Let’s assume that one way or another – and it’s usually by being on the birth certificate if they weren’t married – that he’s got parental responsibility. That means that they can’t go unless he consents without an order of the court. So, the first thing she should do is work out a plan, and she should make very clear what the set-up would be for the child out there – what the family circumstances would be, what her new partner’s doing, if there are any other children, what the relationship is with the new partner, what schools the child would be going to, what those schools are like, where they’d be going to the doctor, how they’d be living, what kind of accommodation they’d be in – so that there would be a whole set-up that she can show, first of all to the father, and then, in due course, if he doesn’t agree, to the court.”
Ayesha was keen to express the importance of a child maintaining a meaningful relationship with both parents: “The other very important aspect that she’s got to set out is how the child is going to carry on having a relationship with her father… the courts are taking more and more notice of this; it used to be really ‘willy-nilly, off-you-go, let’s make the mother happy’, now they’re taking a lot more care about making sure that the father’s properly able to see the child”.
Finances can also play a part in how the child contact arrangements play out:
“If there’s plenty of money, there’s no problem; he can go out there, she should show what hotel he might be able to stay in or what accommodation he might be able to rent. If there isn’t [much money] it gets fiddlier, but it isn’t necessarily a problem because there doesn’t have to be the same pattern of contact as there’s been, it can be bigger chunks of contact, so: long holidays. But what she’s got to do is make very clear that there’s gong to be able to be a proper on-going relationship. She should write to him, set all this out, and if he still says no – and any good lawyer ought to say, ‘well actually, they do tend to like to let the mother go, especially to be with a new partner’ – if he still says no, she should take her application to the court.”