Legal Considerations for Parents Going Through a Breakup

Legal Considerations for Parents Going Through a Breakup

When separating or divorcing a partner with whom you have children, the welfare of the children will always be one of the most important considerations during the process. Everyone wants what is best for their children, but parents do not always agree on what that is, especially during a separation. An informal agreement founded on compromise may be the simplest approach and the best way to maintain a positive relationship with your ex-partner, but it won’t always protect you in the eyes of the law. In this article, we’ll explore legal considerations for parents going through a breakup.

Working together with an experienced family law solicitor is often the best way to approach questions about child custody and access, even if you want to settle matters outside of the courtroom. In fact, the court may require you to try informal negotiations to reach an agreement before an issue is escalated to legal proceedings, and it is advisable to work with a solicitor to make sure all aspects of the matter are considered and that your rights as a parent are upheld.

Naturally, there are more legal steps involved for married parents who are seeking a divorce, but unmarried parents should equally understand the following principles in order to best protect their legal position and their children during the difficult period of a breakup.

Parental responsibility

Parental responsibility refers to the legal rights, duties, powers and responsibilities a parent has for a child. This can be especially relevant in cases where parents are separating or getting a divorce. Parental responsibility gives a parent the right to be involved in major decisions that will affect their child’s life, such as decisions about their education, healthcare, religion and relocation. It also gives you the ability to take enforcement action in cases where one parent tries to make unilateral decisions without the involvement of the other.

Who has parental responsibility?

A child’s birth mother automatically has parental responsibility. If the parents were married at the time of the child’s birth, both parents will automatically have parental responsibility for the child. If the father is listed on the birth certificate, this will also grant him parental responsibility. However, if the father was not married to the mother or named on the birth certificate – even if he is the birth father – he will not automatically have parental responsibility. This means that the mother could take the child to live abroad, or change their religion, without the father having any legal right to challenge this.

Applying for parental responsibility

Thankfully, you can apply to the court to gain parental responsibility for a child. A breakup is a good opportunity to assess your legal position and put this kind of safeguard in place, if necessary. The court can grant responsibility in two different ways. The first is a Parental Responsibility Agreement, which is relatively straightforward but requires the mother’s consent. This is the best option if the breakup is amicable, but it is not the only approach – you can also apply for a court order granting you responsibility.

Parental responsibility and travel

A parent with parental responsibility must agree to any change of name or international travel. If agreement cannot be reached, the parent seeking to make the change must apply for a Specific Issue Order. Taking a child abroad without the other parent’s consent (if they have parental responsibility) or without a court order is a criminal offence and may amount to child abduction under the Child Abduction Act 1984.

Child arrangements

Child arrangements need to be made when parents divorce to determine who the child will live with (residence) and how much time they will spend with the other parent (contact). These can be made informally between parents or formalised by the family court via a Child Arrangements Order under Section 8 of the Children Act 1989.

If parents cannot agree, they are required to attempt mediation before going to court, except in cases where domestic abuse or other issues grant an exemption. If successful, mediation or other informal approaches avoid the stress and expense of court proceedings. Even if you are pursuing an informal agreement before things end up in court, you should have a solicitor advise you of your rights and represent your interests, especially during mediation or other dispute resolution processes.

If the matter cannot be resolved informally, it will proceed to court. The family court’s primary concern is the child’s welfare, and the court will consider the child’s wishes (depending on their age and maturity), the capacity for each parent to meet their needs, and any risk of harm they may suffer when making decisions. One advantage of formalising the agreement through the court is that it can be easily enforced should one parent decide not to follow the provisions of the Child Arrangements Order that is in place.

Financial responsibilities

Both parents are legally obliged to support their children financially, whether or not they are married, unmarried, or involved in a separation or divorce. This can be handled privately or may be organised through the Child Maintenance Service (CMS). The CMS calculates payments based on the paying parent’s income, the number of children and how much contact each child has with each parent. Again, a solicitor can help you to understand how decisions during this process will affect your financial obligations, and determine whether an informal agreement should be accepted or whether you should involve the CMS.

If one parent becomes the primary carer, spousal maintenance may also apply, but this is separate from child maintenance. The relevant parent may be entitled to additional financial support such as Child Benefits or Universal Credit, which may affect decisions about residence and contact during the divorce process.

These are only the most common legal considerations, and others may apply – for example, housing can become complicated if one partner is not on a property’s title deed but financially contributed to it, and there may be other requirements depending on your situation. Speak to a solicitor at your earliest opportunity if you have concerns about access to your children or your legal obligations during a separation or breakup.

Guest Article.