Divorce Rights

Many people are unaware of their divorce rights before considering their options for separation.

The divorce process itself can be straightforward, however the rights following a separation can be a complicated matter to deal with.

Married couples have certain rights in law following a separation which are often known as divorce rights. Quite often the separating couple may be able to amicably agree on these rights without the need of court. When this is not possible the separating couple may resort to the family court for assistance.

Article Contents

What are divorce rights when you separate?

The divorce rights upon separation are determined by many factors. These factors include the length of marriage, whether any children are involved, the reason for the divorce, who was responsible for earning the income to support the family and whether one party left their employment to look after the family. The most common rights following a separation relate to property rights, financial rights and children’s rights. These common divorce rights are considered below.

What are my property rights following a separation?

Property rights are one of the most important divorce rights following a separation. Property rights are dependant on how the property is owned and whether it is jointly owned. Property rights can also be affected by whether a prenuptial or a post nuptial agreement is in place. If such agreements are in place, then these will usually determine what happens to the property following a separation.

In the absence of a prenuptial or post nuptial agreement a spouse has a right to occupation of the property regardless of whether or not the property is jointly owned. The property rights allow a person to live in the property even though they are not named on the deed. Furthermore, if there are children from the marriage and they live with you then you may be able to live in the property until the children have left education. Divorce rights of property protect one spouse from being forced out of the house.

What are my financial rights following a separation?

Apart from property, divorce rights also cover financial rights including the division of other asset following a separation. When considering financial rights and rights to assets the starting point is that the assets should be divided on a 50/50 basis. This is on the understanding that no pre-nuptial or post nuptial agreements exist which would confirm otherwise.

The division of assets on a 50/50 basis is only a starting guide. There are other factors which the court take into account which may change the way in which assets and finances are divided in a divorce. These are the age of the parties, the length of the relationship, whether the assets are jointly or individually held assets, how and when the assets were acquired, partners income earning capacity and pension provisions.

The courts will also place the welfare of the children at the forefront when considering financial divorce rights. The partner who will be the main carer for the children is likely to receive a more favourable settlement. Similarly, if one partner has sacrificed their employment and earning capacity for the sake of the family, they will also be prioritised when considering financial divorce rights. Similarly, if you are better equipped to re-generate your finances than the other spouse, then you may receive a less of a share.

Consider a post nuptial agreement to protect property from divorce

Post nuptial agreements are similar to the prenuptial agreements mentioned above. However, these are for people who have entered into a marriage or civil. Such agreements also allow a person to protect assets in a divorce. Post nuptial agreements allow to record an agreement reached between a couple as to how assets and finances are to be divided in the event of a marital or relationship breakdown. Similar to pre-nuptial agreements these are not legally binding in the UK. The court does not have to follow these agreements although they will be taken into consideration.

A postnuptial agreement is implemented by the courts if the agreement is freely entered into by each partner with full appreciation and understanding of its implications. In order to protect property from divorce prenuptial agreements must be entered into voluntarily, without undue pressure and by being informed of its risks and implications. Each person would therefore need to obtain legal advice before they enter into a post nuptial agreement. At Kabir Family Law our family lawyers in Northampton use their years of experience to assist you in obtaining both pre and post nuptial agreements in order to protect property from divorce.

What are the rights of children following a separation?

The rights of children following a separation are to have a relationship with both parents. When parents are married, they will both have parental responsibility over their children. Parental responsibility over children does not end with divorce of the parents. The parents must continue to provide a home and maintenance for the child as well be involved in key decision making for the children. Parents can attempt to agree amongst themselves how they will maintain contact with the children and who the children will live with. In any disputes the family court can decide on this by ensuring the welfare interests of the children are considered.

What are a mothers rights in divorce?

Following a divorce, a mothers rights in divorce usually depend on whether there are any children from the marriage. If children are involved the mother will usually be seen as the primary carer for the children. However, this is not always the case where it would not be in the best interests of the children to live with the mother.

If the mother is the primary carer for the children, then the mothers rights in divorce could also extend to the property and assets. When considering divorce settlements, the needs and welfare of the children are placed at the heart of any discussions. A mother who is caring for the children will usually have greater divorce rights in terms of any property and financial assets to ensure the needs of the children are met.

A mothers rights in divorce could also mean that the mother is entitled to received child maintenance from the non-resident parent to assist in supporting the children. By being the primary carer of the children and having automatic parental responsibility, the mothers rights in divorce will also require her to make key decisions concerning the children. The mother may not need to consult the father for decisions concerning the day to day living of the children but will require agreement from the father for key decisions if the father has parental responsibility.

A mothers rights in divorce also include the right to spousal maintenance. This payment is made by the other spouse to assist the mother with her living costs and maintenance after separation. Spousal maintenance as part of divorce rights for mothers is usually paid when the mother is left with no income due to her looking after the marital home and not being able to earn. The courts will consider the needs of both partners and the standard of living enjoyed during the marriage before deciding on the spousal maintenance to be paid.

What are a fathers rights in divorce?

Fathers rights in divorce is often a highly debated topic. Quite often fathers feel their divorce rights are very little compared to mothers rights in divorce. This is incorrect as the law is not biased when considering divorce rights.

A fathers rights in divorce are dependant on whether he has parental responsibility for the child. The father does not have automatic parental responsibility and is only granted if they are married to the mother, they are named on the birth certificate, obtain a court order or enter into a parental responsibility agreement with the mother.

Fathers who have parental responsibility will have greater fathers rights in divorce. They can have a say in important matters concerning the children which include the school they go to, the religion they follow and the medical treatment they receive.

Although following a separation it is common for children to remain with the mother, this is not always the case. Fathers rights in divorce allow them to fight for the custody of the child providing it is in the welfare interests of the child. A father with parental responsibility is also able to apply to the courts for child contact and child arrangements if they are unable to reach an agreement with the mother.

Fathers rights in divorce allow a father to see their children and remain in contact with them if it is in the best interests of the child. If the father has been the main carer for the child and the family home whilst the mother has been progressing her career, then a fathers rights to property and assets will be the same as a mothers rights in divorce.

The law is not biased when considering a fathers rights in divorce. If you are a father who is in an unfortunate circumstance of not being able to obtain fathers rights in a divorce then contact our family lawyers in Oxford or nationally to arrange a consultation to find out how we can assist in securing your rights.

What are step parent rights in divorce?

A step parent must be married to a biological parent of a child. Simply living together with the biological parent is not sufficient. Quite often a step parent may not be entitled to see their step-child once they divorce the biological parent.

Step parent rights after divorce depend on whether the step parent acquired parental responsibility for the child during the relationship. Step parents can acquire parental responsibility by:

  • Agreement with all parental responsibility holders
  • By adopting the child
  • By obtaining a court order through the family court.

Step parent rights after divorce do not apply to see their children if they have no parental responsibility. The only way in which a step parent can see their step child is if they reach an agreement with the biological parent or they obtain a child arrangement order through the court. The court will only provide a child arrangement order for a step parent if it is in the welfare of a child.

Step parent rights after divorce extend to when a biological parent is not able to adequately maintain and look after a child. When a child’s welfare and safety is at risk a step parent may be able to exercise some step parent rights by applying for the step children to live with them.

Do step parents have to pay child support?

Many people question whether step parents have to pay child support. The Child Maintenance Service which is run by the government cannot enforce a step parent to pay child maintenance. However a family court may decide that a step parent is required to pay monthly maintenance for a step child. This can be decided as part of financial arrangements order following a divorce.

What are divorce pension rights?

As part of rights there is also the issue of divorce pension rights. If you are married, then you can share your partner’s pension. Divorce pension rights are included in a financial settlement during a divorce. Divorce pension rights can be dealt with in 3 ways:

  1. Pension sharing – This is where you are given a percentage share of your partners pension pot
  2. Pension offsetting – This where the value of the pension is offset against other assets. This allows one partner to keep the pension whilst the other partner acquires other assets of the same value.
  3. Pension earmarking – this is where some of your pension is paid to your partner. This is similar to maintenance and is paid from the partners pension pot.

When considering divorce pension rights and especially a pension sharing option or pension earmarking option, it is important to note that only a court can make an order for this. Therefore if you are considering this, it is important that you obtain legal advice.

Exercising divorce pension rights through pension offsetting can be carried out without a court order. IF you would like more advice on divorce pension rights contact our specialists today who are experienced in all aspects of divorce law.

— Q&A SECTION — 

What are unmarried step parent rights after divorce? 

Unmarried step parent rights after divorce do not exist. This means unmarried step parents will not have any right to see their step-children unless they have a residence order which will last for as long as the child is living with the parents partner. If the biological parent and the unmarried step parent separate then the unmarried step parent will not have nay right to see his child unless agreed by the biological parent.

Contact us today to understand your divorce rights

At Kabir Family Law, our family law specialists are experienced in dealing with all types of divorce and child law matters. If you would like to discuss your divorce rights then contact us on 0330 094 5880 to discuss your options or let us call you back. With family lawyers in Fulham as well as Newcastle, York, Northampton and Oxford we are proud to be able to offer local appointments at our branches.