Naomi Pryde: Forget about finding fault and put children’s needs first

TOM Cruise and Katie Holmes’ marriage has ultimately proved to be mission impossible, and, after five years of marriage, the actress has filed for divorce.

She may have chosen to do this in New York as it is a “fault state” and it could be that she thinks she may stand a better chance of being granted sole custody of their young daughter, Suri, as the reasons for their separation can be considered by the judge.

But as they live in California, which is a “no fault” state, it’s likely Tom Cruise’s lawyers will argue it’s the correct place for divorce proceedings and that he will seek joint custody.

So what about across the Atlantic in the United Kingdom? How does the law differ, if at all?

The UK is a “no fault” jurisdiction and the reasons for a separation are not considered by any judge.

Parents who are divorcing and can’t agree on arrangements for their children can turn to the courts for help. A contact or residence order that will determine visiting rights and where the child will live can be issued.

It’s also possible for a shared residence order to be granted, whereby the children effectively spend half of their time with each parent.

However, regardless of where you live in the UK or where you raise your divorce action, the courts will only consider what is in the best interests of the child and will take into account a raft of issues, from the wishes of the child concerned to the capabilities of both parents to meet the child’s needs.

It’s a common misconception that mothers in the UK always “get” the child – there is no legal presumption regarding which parent the child should live with and each case will be treated on its own merits.

Therefore, both Tom and Katie could comfortably argue their respective cases for Suri over here.

Regardless of the reasons for their separation, Katie and Tom, notwithstanding their Hollywood status, will be required, like all parents, whether here or in the United States, to put the best interests of their child ahead of any of their own differences when deciding where she should live.

• Naomi Pryde is a family law solicitor at the legal firm of Tods Murray.