If you divorce and have children, it is important to understand that the divorce legally ends the marriage, but it does not automatically decide child arrangements (child custody), child maintenance, or financial matters between you and your spouse. This is because these are agreed separately. And if you cannot agree, a court can decide for you.
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How can you divorce with children?
If you divorce with children, you and your spouse will need to agree on matters such as:
- Where your children will live
- How much time they will spend with each parent
- How decisions about your children will be made
- Whether the children will receive child maintenance from the other parent
These matters are known as child arrangements and child maintenance. When reaching decisions on these issues, parents are encouraged to focus on their children’s welfare and maintain stability wherever possible.
It is by no means a legal requirement to agree on child arrangements during the divorce process; however, many parents choose to do so. It helps provide certainty for the children and clarity for both parents. Unlike a financial settlement, which is usually best finalised as part of the divorce, a child arrangements agreement can be changed later if circumstances change and both parents agree.
What are child arrangements and how do they work?
One of the most difficult matters for divorcing parents is deciding where the children will live and how much time they will spend with each parent. In England and Wales, this is referred to as ‘child arrangements’. It replaces what used to be called custody and contact. Divorcing parents are not required to formalise child arrangements through the court if they can reach an agreement themselves. If you can agree, you can record this in a parenting plan. While a parenting plan is not legally binding, it sets out clearly what you have agreed.
If parents cannot agree, or want a clear and formal arrangement, either parent can apply to the family court for a Child Arrangements Order. Before making an application, parents are generally expected to attend a Mediation Information and Assessment Meeting (MIAM). A MIAM is a meeting with a trained mediator to explore whether mediation or another form of non-court dispute resolution can resolve the issue without going to court. This is a requirement under the Family Procedure Rules. If there are safeguarding concerns, domestic abuse, urgency or a risk of harm to the children, you may be able to apply to court without attending a MIAM first. A family law solicitor can advise you on whether an exemption applies.
A Child Arrangements Order is legally binding. If a parent breaches the order without a reasonable excuse, the court can take enforcement action. A Child Arrangements Order does not deal with child maintenance. Child maintenance is usually arranged separately, either directly between the parents or through the Child Maintenance Service (CMS).
Who is more likely to have the children live with them?
There is no automatic rule about which parent a child will live with. The court does not favour mothers over fathers or fathers over mothers. Decisions are based on what is in the best interests of the child. In practice, children often live primarily with the parent who has been their main carer. However, the court looks at all the circumstances and applies the welfare checklist set out in section 1(3) of the Children Act 1989. The factors it considers include:
- The child’s wishes and feelings, in light of their age and understanding
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change in their circumstances
- The child’s age, sex, background and any relevant characteristics
- Any harm the child has suffered or is at risk of suffering
- How capable each parent is of meeting the child’s needs
- The range of orders available to the court
Is full custody available and when might it be granted?
Full custody, or sole custody, means a child lives with one parent and that parent makes most decisions about the child’s day-to-day life. It is available in England and Wales, but it is not the default outcome. The family court will only grant sole custody where the evidence shows it is in the child’s best interests. Circumstances that may lead to a sole custody arrangement include domestic abuse or violence, substance misuse, severe mental health difficulties that are unmanaged, neglect, or other serious welfare concerns about one parent.
The other parent may still be granted contact with the child, even if they do not have the child living with them. The court will always consider what level of involvement by each parent best serves the child’s welfare.
FAQs about divorcing with children
Does divorcing with children affect the financial settlement?
Yes, having children can affect how the financial settlement is divided. The court’s starting point in financial remedy proceedings is to ensure the needs of any children are met first. This can affect decisions about the family home, income provision, and the overall division of assets.
For example, if one parent is the primary carer for the children, the court may award them a larger share of the family home or other assets to ensure the children have stable housing. The children’s needs do not override all other considerations, but they are given significant weight.
Does the parent who lives with the children automatically keep the family home?
No. The parent who lives with children does not have an automatic right to keep the family home. However, the court will consider the children’s need for stability and continuity when deciding what happens to the property.
Read our guide: Who Gets the House in a Divorce With Children?
Can the sale of the home be delayed until the children are older?
Yes, a Mesher Order allows the parent with primary care of the children to remain in the family home until a trigger event occurs, while both parties retain a defined share of the equity. The sale is then deferred until that trigger event takes place.
Whether a Mesher Order is appropriate depends on the circumstances of the case, including the financial positions of both parties and the ages of the children. It is not always the right option, and your solicitor can advise on whether it is suitable for your situation.
Who has to pay child maintenance?
Child maintenance is paid by the parent with whom the children spend less time, to the parent who is their main carer. Either parent can be required to pay, regardless of gender.
Child maintenance can be agreed voluntarily between the parents. If you cannot agree, either parent can apply to the Child Maintenance Service (CMS). The CMS calculates maintenance based on the paying parent’s gross weekly income, the number of children, and the number of nights the children spend with the paying parent. The standard rates are 12% of gross income for one child, 16% for two children, and 19% for three or more children. Child maintenance generally applies until the child turns 16, or until they turn 20 if they remain in full-time education up to and including A level or equivalent.
Does the court listen to the child’s wishes in child arrangement orders?
Yes, the child’s wishes and feelings are one of the factors in the welfare checklist under section 1(3) of the Children Act 1989. The court must consider them, taking into account the child’s age and level of understanding.
The child’s views are not the only factor and are not necessarily decisive. The court balances the child’s wishes against all the other welfare checklist factors. In practice, the views of older children tend to carry more weight, though this varies depending on the child’s maturity and understanding. The court may ask CAFCASS (the Children and Family Court Advisory and Support Service) to prepare a report setting out the child’s wishes and the officer’s recommendations.
References:
GOV.UK: Making child arrangements if you divorce or separate
LEGISLATION.GOV.UK: Section 1(3) of the Children Act 1989
