What are your rights when you divorce?
Getting a divorce is fairly straightforward. It is the issues like agreeing a financial settlement, dividing property and matters involving children which can take time to sort out. This is why it is important to take qualified legal advice from someone specialising in family and divorce law, at an early stage.
Married couples have certain rights in law but the specifics of a case will need to be examined by an experienced family lawyer to assess any claims or liabilities if an amicable agreement cannot be reached.
These are some of the common 'rights' which may come into question during separation or divorce.
Much here will depend on how the property is owned and whether it is in joint names. It can also be affected by any prenuptial or co-habiting agreement drawn up when you first acquired the property. Basically, if you are married you have a right of occupation. Whether or not your name is on the deeds, you have the right to live there and not to be excluded, for instance by the other party changing the locks.
If you are married and have children living with you, you may be able to secure the right to live in the property until the children have left school.
In any situation, if your partner is trying to force you out of the house you should take legal advice straight away.
If you are better equipped to “re-generate” your finances than the other party, you may well receive less than they do. It can appear that you are losing out because you have worked hard, but this is the way a court is likely to deal with things.
There will often be a range of possible solutions to dividing the assets, and it is important that you explain fully to your lawyer your own preferences within that range. It may be that you can come to an amicable agreement with your partner. If you can’t agree however you have the right to invite the court to decide on a division of the assets with your partner.
Your lawyer will guide you through the factors that the court may take into account, such as the age of the parties, the length of the relationship, jointly and individually held assets (including property), your income and pension provisions. Sorting out these arrangements with your former partner outside the bounds of the court will save time, money and additional heartache.
If there are children from the relationship, generally speaking, the court will give priority to whoever is caring for them, and will try to address the reasonable needs of the parties for things like housing.
It can sometimes seem as though men have fewer rights than women. This will often be a result of any children living with their mother, who earns less, has a lower mortgage capacity and less pension provision than the other partner.
The rights of children
The law is very clearly based upon the rights of the children, rather than those of the parents. In broad terms, it is considered to be their right to have a relationship with both parents.
If you were married, you will have parental responsibility for the children and this will give you the right to access information and make decisions on their behalf, for example about the health and education.
If the couple are not married, only the mother has automatic parental responsibility in all cases. Full details on this important issue are covered in the Parents Rights Section.
It is often perceived that fathers do not really have any rights and it can be very difficult sometimes for the courts to intervene in an effective way if the parent with whom the child is living is determined to resist there being any contact.
But the courts can and do take steps, such as changing residence arrangements. They can even send a disobedient parent with care to prison if they willfully and repeatedly ignore an order of the Court.
Need further advice?
Contact Woolley & Co on 0800 3213832 or book a free initial appointment with one of our lawyers.
Ian is one of those rare legal practitioners who actually puts the needs of the client first.
Raj Joshi (February 2012)