Divorce Rights

Part of: Divorce Specialists

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

Understanding your divorce rights is crucial when facing marital breakdown. These fundamental divorce rights protect both parties during what can be an emotionally challenging time. Every married person should be aware of their basic divorce rights to ensure they make informed decisions about their future.

The divorce process itself can be straightforward, however the rights following a separation can be a complicated matter to deal with. Those rights come from the UK divorce laws that apply where your case is dealt with, so it pays to know which rules govern you before you agree to anything.

Securing your divorce rights requires careful consideration of multiple factors including property ownership, financial arrangements, and children’s welfare. Professional guidance on divorce rights can help ensure you don’t inadvertently waive important entitlements during negotiations.

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. The divorce rules that end the marriage and the rules that divide the money are two different things, and the section below sets out what the law actually says.

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, conduct where it would be unfair to ignore it, 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 does UK divorce law actually say?

UK divorce law rests on two Acts. The Matrimonial Causes Act 1973 still decides money and property, and the Divorce, Dissolution and Separation Act 2020 changed how the marriage itself is ended, from 6 April 2022.

Under section 1 of the 1973 Act as it now stands, there is a single ground for divorce: the marriage has broken down irretrievably. You no longer prove a reason. The 2020 reform also replaced decree nisi and decree absolute with the conditional order and the final order, and removed the ability to defend. Our guide to no fault divorce covers the reform, the waiting periods and the new wording in full, and our divorce specialists page covers the process step by step.

Here is the part that catches people out. The 2020 Act changed how a marriage is ended. It changed nothing about who gets what. Your divorce rights over property, pensions and maintenance still come from the 1973 Act, and the court still weighs the section 25 factors: each person’s income and earning capacity, their needs and obligations, the standard of living during the marriage, their age and the length of the marriage, any disability, what each contributed including caring for the home and the children, conduct where it would be unfair to ignore it, and the benefits each one loses by divorcing. The welfare of any child under 18 comes first.

Two consequences are worth knowing before you agree to anything. A final order ends the marriage, it does not end financial claims, so being divorced is not the same as being financially separated. And under section 28(3) of the 1973 Act, if you remarry or form a civil partnership before you have applied for a financial order, you can no longer apply for a financial provision order or a property adjustment order against your former spouse. That is one of the few divorce rights the law lets you give up by accident.

Is UK divorce law the same everywhere in the UK?

No. “UK divorce law” is not one law. England and Wales share a single system, and Scotland and Northern Ireland each have their own, with different grounds and different waiting periods. Most people who search for UK divorce laws mean an English law divorce, the law of England and Wales, and that is the law this page describes.

• England and Wales – no fault only since 6 April 2022. One ground, no reason to prove, then 20 weeks and 6 weeks.
• Scotland – the Divorce (Scotland) Act 1976 still applies. Irretrievable breakdown must be shown by adultery, unreasonable behaviour, one year apart with your spouse’s consent, or two years apart without it.
• Northern Ireland – the Matrimonial Causes (Northern Ireland) Order 1978 still applies. You must prove one of five facts, including desertion, two years apart with consent, or five years apart without it.

Which system applies is decided by jurisdiction, not by where you married. If you or your husband or wife live, work or hold assets outside England and Wales, settle that question first, because it decides the grounds you need, the timetable you face and how your finances are divided. Our international family law specialists deal with exactly this.

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 assets following a separation. When considering financial rights and rights to assets the court starts from all the circumstances in section 25 of the Matrimonial Causes Act 1973, with the welfare of any child under 18 coming first, and then checks the result against an equal division. An equal split is a yardstick, not an entitlement, and in most cases what each of you needs comes first and produces something other than 50/50. This is also 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 already entered into a marriage or civil partnership. 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 automatically binding in England and Wales. 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 apply for a child arrangements order setting out who the child lives with, 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 attachment, still often called earmarking – this is where some of your pension is paid to your former spouse. 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 attachment 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.

Offsetting does not need the court to divide the pension itself, but the agreement is only binding once the court approves it in a consent order. Without one, either of you can reopen the claim later, which is the same trap as remarrying before a financial order is made. Talk to us before you agree an offset. If you would like more advice on divorce pension rights contact our specialists today who are experienced in all aspects of divorce law.

Common questions about your rights in a divorce

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 child arrangements order saying the child lives with them, which lasts for as long as that arrangement is in place. If the biological parent and the unmarried step parent separate then the unmarried step parent will not have any right to see the child unless agreed by the biological parent.

What are divorce rights in the UK?

A: Divorce rights in the UK include property rights, financial rights, and children’s rights following marital separation. These rights protect both spouses during divorce proceedings and ensure fair distribution of assets and ongoing responsibilities. Key divorce rights include the right to remain in the family home, claim a share of marital assets, and maintain contact with children. Understanding your divorce rights is essential before beginning divorce proceedings. For specific guidance, consult our family lawyers to understand how UK law applies to your situation.

Do mothers have more divorce rights than fathers?

A: No, mothers do not have more divorce rights than fathers under UK law. Divorce rights are determined by factors such as marriage length, financial contributions, and children’s welfare needs rather than gender. Both parents have equal rights to apply for a child arrangements order, for contact and for financial support. The court’s primary concern is the children’s best interests when determining divorce rights. Our child custody specialists can help both parents understand their equal rights.

What are fathers’ rights in divorce proceedings?

A: Fathers’ rights in divorce include the right to apply for a child arrangements order, arrange contact schedules, and participate in important decisions about their children’s upbringing. Financial divorce rights for fathers include claiming a share of marital assets and potentially receiving spousal maintenance. Fathers with parental responsibility have equal rights to mothers in determining their children’s education, medical care, and religious upbringing. 

Can I stay in the family home during divorce?

A: Yes, you have divorce rights to remain in the family home regardless of whose name is on the property deeds. This right of occupation protects you from being forced out during divorce proceedings. If you have children living with you, your divorce rights may extend to remaining in the property until the children complete their education. However, the final property settlement will determine long-term arrangements. Our prenuptial agreement specialists can explain how prior agreements affect property rights.

What happens to pensions in divorce?

A: Divorce pension rights allow you to claim a share of your spouse’s pension benefits. There are three main options: pension sharing (receiving a percentage of the pension pot), pension offsetting (trading pension value for other assets), or pension attachment, still often called earmarking (receiving payments from your spouse’s pension). Pension sharing and attachment require court orders, and an offset is only binding once the court approves it in a consent order. 

Are stepparents entitled to divorce rights?

A: Stepparent rights after divorce depend on whether they acquired parental responsibility during the marriage. Without parental responsibility, stepparents have no automatic rights to see their stepchildren after divorce. However, stepparents can apply for child arrangement orders if contact would benefit the child’s welfare. Stepparents may also have financial obligations toward stepchildren even after divorce.

How are assets divided in divorce?

A: UK divorce rights typically start with a 50/50 division of marital assets, but this can vary based on individual circumstances. Courts consider factors including marriage length, each party’s contributions, future earning capacity, and children’s needs. Prenuptial agreements can also influence asset division. The goal is achieving a fair outcome that recognises both parties’ contributions to the marriage. Our financial settlement specialists guide clients through complex asset division matters.

What is spousal maintenance in divorce?

A: Spousal maintenance is financial support paid by one spouse to the other after divorce. This divorce right helps maintain living standards when one spouse cannot immediately become financially independent. Factors affecting spousal maintenance include the recipient’s needs, the payer’s ability to pay, marriage length, and the standard of living during marriage. Spousal maintenance can be temporary or permanent depending on circumstances.

Can divorce rights be waived?

A: Some divorce rights can be waived through pre-nuptial or post-nuptial agreements, but these must be fair and properly executed. You cannot waive fundamental rights such as child maintenance or rights relating to children’s welfare. Any agreement waiving divorce rights should be reviewed by independent legal advisors to ensure it’s legally binding and fair. 

How long do I have to claim divorce rights?

A: There is no fixed time limit on a financial claim, which surprises people. A final order, which used to be called the decree absolute, ends the marriage but does not end financial claims, so a former spouse can still apply years later if no financial order was ever made. The hard cut-off is remarriage. Under section 28(3) of the Matrimonial Causes Act 1973, once you remarry or form a civil partnership you can no longer apply for a financial provision or property adjustment order against your former spouse. However, some rights, such as those relating to children, continue indefinitely. It’s crucial to seek legal advice promptly to ensure you don’t lose important divorce rights through delay. Contact our specialists for time-sensitive divorce rights matters.

What if my spouse hides assets during divorce?

A: If you suspect your spouse is hiding assets, you have divorce rights to full financial disclosure. Courts can make orders requiring complete disclosure of all assets, and failure to comply can result in serious consequences. Forensic accountants may be needed to trace hidden assets. Deliberately concealing assets can affect the final settlement in your favour. Our financial investigation specialists can help uncover hidden assets during divorce proceedings.

Can I get emergency protection of my divorce rights?

A: Yes, emergency court orders can protect your divorce rights when immediate action is needed. These include freezing orders to prevent asset disposal, occupation orders to secure your right to remain in the family home, and non-molestation orders for protection from harassment. Emergency applications can usually be made without notice to your spouse when urgency is required. 

Do cohabiting couples have divorce rights?

A: Cohabiting couples do not have divorce rights as they are not married. However, they may have property rights under trust law or the Trusts of Land and Appointment of Trustees Act 1996. Unmarried parents have rights regarding their children, including contact and financial support. Without marriage, there are no automatic rights to financial support or property division. Our cohabitation specialists can explain your legal position as an unmarried partner. A cohabitation agreement is the usual way to set out what happens to the home, the bills and any savings if you separate, and it is far easier to agree now than to argue about afterwards.

How do international marriages affect divorce rights?

A: International marriages can complicate divorce rights, particularly regarding jurisdiction and applicable law. Jurisdiction usually turns on habitual residence and domicile rather than on where the wedding took place. EU rules no longer apply to divorces started in England and Wales, because Brussels IIa was revoked at the end of the Brexit transition period on 31 December 2020, so jurisdiction is now decided under domestic law and the international conventions that remain in force. Legal advice is essential to understand which country’s courts have jurisdiction and which laws apply to your divorce rights. Our international family law experts handle complex cross-border divorce matters.

Can mental health issues affect divorce rights?

A: Mental health issues can impact divorce rights, particularly regarding financial settlements and children’s arrangements. Courts consider mental health when determining each party’s needs and capacity to earn. Mental health problems don’t automatically limit your divorce rights, but they may affect arrangements for children’s care and contact. Professional medical evidence is often required to establish how mental health impacts divorce proceedings.

What divorce rights do military spouses have?

A: Military spouses have the same fundamental rights as civilian spouses, plus additional considerations for military pensions and benefits. Military pension rights may include survivor benefits and continued access to military healthcare. Deployment and military service can affect child arrangements and require special consideration in divorce proceedings. Specialist military divorce advice ensures all service-related benefits are properly addressed.

How do business assets affect divorce rights?

A: Business assets are subject to rights and may need to be valued and potentially divided. The court considers factors such as when the business was established, both parties’ contributions, and the business’s future viability. Options include selling the business and dividing proceeds, one spouse buying out the other, or continuing as business partners. Professional business valuations are typically required for complex commercial divorce matters.

Can domestic violence affect divorce rights?

A: Yes, domestic violence can significantly impact rights, particularly regarding children’s arrangements and financial settlements. Victims of domestic violence may be entitled to greater protection and potentially more favourable financial arrangements. The court prioritises safety when making decisions about contact with children and may restrict the abusive spouse’s rights accordingly. Emergency protection orders can safeguard vulnerable parties during divorce proceedings.

What divorce rights apply to high-value divorces?

A: High-value divorces involve the same basic rights but with additional complexities regarding asset valuation and division. These cases may involve multiple properties, business interests, offshore assets, and complex financial arrangements. The court may need to consider lifestyle needs, earning capacity, and the source of wealth when determining settlements. Specialist high-net-worth divorce lawyers handle complex financial arrangements effectively.

How do pre-nuptial agreements affect divorce rights?

A: Pre-nuptial agreements can significantly impact divorce rights by predetermining how assets will be divided and whether spousal maintenance will be paid. However, these agreements must be fair, properly executed, and both parties must have received independent legal advice. Courts can set aside pre-nuptial agreements if they would cause significant hardship or were unfairly obtained. Our prenuptial specialists ensure agreements protect your future rights appropriately.

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.