Getting a divorce means grappling with questions around asset division, child custody, maintenance, financial statements etc. This article is a complete guide on your rights as a wife in a divorce under UK law.
Can I get a divorce?
Firstly, in order to get a divorce in the UK, you and your spouse must have been married for at least one year. You must also check if you are legally married. Religious ceremonies recognised by your community may not constitute a lawful marriage. In England and Wales, legal requirements for marriage must be met such as being 18 or over (without parental consent), ‘giving notice’ at a regitery office at least 29 days before the ceremony and having the marriage registered through ‘authorised person’ or registrar.
The Petition Race
If you have a legal marriage, the next step is to find out if your husband can get a divorce abroad. Typically, the jurisdiction applicable is the same place where the marriage takes place. However, in some cases, marriage contracts outline if any other jurisdiction is going to be relied upon to file a divorce. If you think your husband might start divorce proceedings abroad, you should initiate them urgently in England or Wales before they do.
If you are in a financially weak position, you should seek a divorce in the courts of England or Wales because they award financial payouts to more vulnerable parties. If your marriage did not take place in the UK, and neither of you has British nationality, you can still file for divorce in UK courts, however, you must show that you habitually resided in England or Wales.
Who has child custody?
Previously, courts preferred to give child custody to mothers. However, now the courts favor joint custody, which means the child has two homes. This concept is commonly applied where both parents have full-time jobs.
Courts protect children through a Child Arrangements Order which covers:
- Who will live with the child.
- Contact with non-resident parent.
- Conditions and prohibitions on contact with non-resident parent.
If the child refuses to meet the non-resident parent, they cannot be forced to maintain contact.
Both parents are responsible for the costs of raising their children, even if they do not see them. Child maintenance is an arrangement between you and the other parent of your child. It covers the child’s living costs when one of the parents no longer lives with them. Maintenance is made when you’ve separated from the other parent. Child maintenance can be either a private arrangement between you and the other parent or through the Child Maintenance Service. You need to have child maintenance arrangements for children under 16 (or under 20 if they’re in approved education or training).
I don’t want my husband to be in contact with my kids
Making agreements about access to your children happens separately and applications for child arrangements orders are usually between private individuals under Section 8 Children Act 1989. The courts believe that children do better when they are in contact with both parents. A Child Arrangements Order is a legally binding agreement. If the court has issued one, and you breach it by not allowing your child to meet their father, you can be taken to Court.
if the father refuses contact with his child, he will also be in breach of the Order.
If you want to move abroad with your children, you cannot do it without obtaining the consent of your ex-husband.
Your husband cannot force you to leave your house even if he is the owner until the court issues a financial statement. To secure your rights, register with the Land Registry. Likewise, you cannot force him out of the house, either.
I am a home-maker, what are my rights?
If you stopped working to become a home-maker, the courts would take this into account during asset division. Usually, all assets are divided proportionately between spouses unless any of the factors under section 25 are present. Where courts determine that home-maker wives have contributed more to the family wealth by providing care to the household, wives may get a bigger share.
If you are a home-maker, you are also the primary carer of the children. In that case, if finding a new home is difficult for you, the court can grant you the family home until your children turn 18.
If you don’t have children or the option of another house, the family home will be sold and its proceeds will be divided equally.
Though courts divide assets proportionately between spouses, this is not definite. The court considers various factors to determine asset division. Usually, marriages longer than 15 years are awarded proportionate division. However, in marriages lasting for 5 years, both partners are restored to their original financial positions prior to it.
Prenuptial agreements are not legally binding. However, if you signed one with your partner, it may clarify your intentions about your property existing before your marriage.
The safest option to secure your property rights is to seek a settlement with your partner in which you mutually agree on asset division. This can save you time and money spent on divorce solicitor fees for court hearings.
However, if you feel that your partner will be uncompromising, letting the court decide your financial statement might be best for you.
The court will award maintenance considering your living standard, earning potential, and age. Do not expect life long maintenance provided by your ex-husband. The court believes that maintenance should be provided till a specific time where from then onwards, ex-wives should be able to earn. However, if some health disabilities or domestic abuse is involved, maintenance and compensation are provided.
Similar to asset division, liabilities will also be divided among both ex-partners. Mortgages registered in both names are jointly paid. If you are unable to pay, your ex-husband will be responsible for the full payment. However, this can be the other way round too.
No matter whose name the tenancy is in, both ex-partners pay the rent. Similar to mortgages, failure to pay by one means the other has to pay it fully.
Keep in mind
There is no straight forward answer to “what are my rights as a wife in a divorce.” There is no family law in the UK made specific to women only. Most rights apply to both parties in cases of asset and liability division. Assets, mortgages, and rent are typically divided proportionately.
You must ensure that you are eligible to divorce. Protect yourself by filing for it in English courts before your ex-husband drags you in courts overseas.
Only mothers have an edge in courts, especially if they are home-makers and the primary carer. The courts are sympathetic towards them when considering years of household care provided by wives, which enables their husbands to work and resultantly, build assets.
Courts are not in favor of life-long maintenance. If you are divorcing, it does not make sense to be supporting your ex-partner for the rest of your life.