Key Rights and Duties in Divorce and Parental Responsibility in England and Wales

By Natalie Popova, Legal Consultant | Express Law Solutions

Disclaimer: This article is for general information only and does not constitute legal advice. For specific guidance, contact Express Law Solutions.

Introduction

Divorce is never a purely legal matter; it is a life-changing process that affects not only the spouses but also their children, extended family, and financial stability. For many people, the breakdown of a marriage brings emotional challenges, uncertainty about the future, and difficult practical decisions. In England and Wales, the law provides a structured framework to guide couples through these transitions, but understanding the legal system can feel daunting without professional advice.

Divorce proceedings are not limited to ending the marital bond; they also involve important questions about property division, financial support, and crucially the care of children. While the marriage itself may be dissolved, parenthood continues. Parents remain legally responsible for their children, regardless of their relationship with each other. This principle lies at the heart of family law: the welfare of the child is always the paramount consideration.

Since the introduction of “no-fault divorce” under the Divorce, Dissolution and Separation Act 2020, separating couples no longer need to assign blame to end their marriage. However, the legal process remains significant, particularly where finances and children are involved. For parents, decisions about residence, contact, and upbringing can be the most sensitive and contested issues.

This article explains the key rights and duties that arise during divorce and separation in England and Wales. It outlines the legal framework for divorce, the concept of parental responsibility, and the role of the courts in resolving disputes about children. It also examines international considerations, which are increasingly relevant in a globalised society where families often span more than one country. By understanding these principles, parents can approach divorce with greater clarity and ensure that their children’s best interests remain central throughout the process.

1. The Legal Framework

1.1 Divorce Law

Matrimonial Causes Act 1973 (MCA 1973): The main statute regulating divorce, finances, and related matters.
Divorce, Dissolution and Separation Act 2020: Introduced “no-fault divorce” from April 2022, allowing spouses to apply for divorce without alleging adultery, unreasonable behaviour, or other fault-based grounds.

1.2 Children and Family Law

Children Act 1989: Governs parental responsibility, child arrangements, and the welfare principle.
Welfare Principle (s.1 Children Act 1989): The child’s welfare is the court’s paramount consideration in all decisions relating to children.

2. Divorce Proceedings – Step by Step

2.1 Application

Either spouse, or both jointly, may apply for divorce online or via paper forms. The only ground is the irretrievable breakdown of the marriage, demonstrated through a statutory statement.

2.2 Timeline

A minimum 20-week period between the start of proceedings and the conditional order (formerly decree nisi).
A further 6 weeks before the final order (formerly decree absolute) can be granted.

This timeline is intended to allow reflection and negotiation, especially regarding financial and childcare arrangements.

2.3 Financial Orders

Spouses may apply for financial remedies under MCA 1973, including:

Division of assets (property, savings, pensions)
Spousal maintenance
Clean break orders

When making financial orders, the court considers statutory factors under s.25 MCA 1973, such as each party’s income, earning capacity, contributions, needs, and the welfare of any children.

3. Parental Responsibility (PR)

3.1 Definition

Under s.3 Children Act 1989, parental responsibility (PR) refers to all the legal rights, duties, powers, and authority a parent has in relation to a child and the child’s property. It covers decisions about education, healthcare, religion, and living arrangements.

3.2 Who Has PR?

Mother: Automatically acquires PR at birth.
Father: Acquires PR if married to the mother at the time of birth, or if registered on the child’s birth certificate (after 1 December 2003).
Fathers without automatic PR may obtain it via a Parental Responsibility Agreement with the mother or a Parental Responsibility Order from the court.

3.3 Shared Responsibility

Divorce does not end parental responsibility. Both parents with PR continue to share duties even after separation.

4. Child Arrangements Orders

When parents cannot agree informally on where a child will live or how much time they will spend with each parent, the court may issue a Child Arrangements Order (CAO) under the Children Act 1989.

The court applies the Welfare Checklist (s.1(3) Children Act 1989):

The child’s wishes and feelings (considering age and maturity)
The child’s physical, emotional, and educational needs
The likely effect of changes in circumstances
Any risk of harm
Each parent’s ability to meet the child’s needs

5. Duties Towards Children After Divorce

5.1 Financial Duty

Both parents remain legally responsible for financially supporting their children. The Child Maintenance Service (CMS) can calculate and enforce regular contributions from the non-resident parent.

5.2 Emotional and Practical Duty

The law encourages children to maintain meaningful relationships with both parents, unless doing so would harm the child. Mediation and cooperation are strongly encouraged before court proceedings.

6. Alternative Dispute Resolution (ADR)

Before applying to court for child arrangements, parents must usually attend a Mediation Information and Assessment Meeting (MIAM). Mediation can be quicker, less costly, and less adversarial than litigation, helping parents find cooperative solutions.

7. Practical Tips for Parents

Keep the child’s needs central: Courts always prioritise welfare over parental disputes.
Document arrangements in writing: Even informal agreements benefit from clarity.
Seek early legal advice: Especially in cases of domestic abuse, relocation, or complex finances.
Consider mediation: It reduces conflict and protects children from prolonged disputes.

8. Example Scenario

A divorcing couple cannot agree on where their 8-year-old son should live. The mother wishes to move to another city for work, while the father argues for continuity of schooling. The court considers the child’s views, the impact of moving, and the practical arrangements proposed. Ultimately, the court allows the move but grants the father structured contact, including weekends and school holidays.

This example highlights how courts balance competing parental interests while prioritising the child’s welfare.

9. International and Cross-Border Considerations

9.1 Relocation Cases

If a parent wishes to relocate abroad with a child, they must have the other parent’s consent or obtain the court’s permission. The court evaluates:

Reasons for relocation
Practical arrangements in the new country
The effect on the child’s relationship with the other parent
Options for maintaining contact

9.2 Child Abduction

Removing a child abroad without consent may amount to child abduction. Under the Hague Convention 1980, the UK can seek the swift return of abducted children, subject to limited exceptions.

9.3 International Divorce and Jurisdiction

Where families have links to more than one country, questions of jurisdiction and applicable law arise. Jurisdiction in England and Wales usually depends on habitual residence or domicile. Specialist legal advice is crucial in these situations.

9.4 Enforcement of Foreign Orders

Divorce and custody orders made abroad may be recognised and enforced in England and Wales, depending on treaties and recognition rules. Parents should obtain legal advice promptly if international enforcement is needed.

Conclusion

Divorce formally ends a marriage but does not end parenthood. Parents in England and Wales continue to share responsibilities towards their children, guided by the welfare principle of the Children Act 1989. Financial support, emotional care, and decision-making duties remain central even after separation.

When disputes arise, the courts provide structured solutions, but parents are encouraged to pursue mediation and cooperative arrangements wherever possible. In cases with international elements, additional legal complexities arise, making early specialist advice essential.

By understanding the legal framework, parents can navigate divorce with greater confidence and ensure that children’s best interests remain the priority at every stage.

Frequently Asked Questions (FAQ)

1. How long does the divorce process take in England and Wales?

The minimum period is around 6 months due to the 20-week reflection period and the 6-week gap between the conditional order and final order. However, if financial or childcare issues are contested, the process can take longer.

2. Do I need to prove fault to get a divorce?

No. Since April 2022, you can apply for a “no-fault divorce” under the Divorce, Dissolution and Separation Act 2020. You only need to state that the marriage has irretrievably broken down.

3. Who has parental responsibility for a child?

The mother always has parental responsibility from birth. Fathers have it if married to the mother at the time of birth or if listed on the birth certificate (after 1 December 2003). Fathers without automatic PR can apply for a Parental Responsibility Agreement or Order.

4. What happens if parents cannot agree on child arrangements?

If parents cannot agree, they must usually attempt mediation first (a MIAM). If mediation fails, either parent can apply to the court for a Child Arrangements Order. The court will base its decision on the child’s best interests using the Welfare Checklist.

5. Can I relocate abroad with my child after divorce?

Not without the other parent’s consent (if they have parental responsibility) or the court’s permission. The court will assess whether the move is in the child’s best interests, considering education, family ties, and maintaining contact with the other parent.

6. What if my ex-partner does not pay child maintenance?

The Child Maintenance Service (CMS) can calculate, collect, and enforce payments. They have powers to deduct money directly from wages or bank accounts and, in serious cases, take enforcement action through the courts.

Key Steps in the Divorce Process (England & Wales)

Step	Description	Typical Timeframe
1. Application	One or both spouses apply for divorce online or by post, stating that the marriage has irretrievably broken down.	Filing stage
2. 20-Week Reflection Period	A mandatory period for both parties to consider reconciliation or prepare practical arrangements.	20 weeks
3. Conditional Order	The court confirms that the legal requirements for divorce have been met (formerly “Decree Nisi”).	After reflection period
4. Financial & Child Arrangements	Agreements or court orders on division of assets, spousal maintenance, and child arrangements.	Varies (negotiation or court)
5. Final Order	The divorce is legally completed (formerly “Decree Absolute”).	At least 6 weeks after Conditional Order

Sources & References

Matrimonial Causes Act 1973 (MCA 1973) – UK Legislation – Matrimonial Causes Act 1973
Divorce, Dissolution and Separation Act 2020 – UK Legislation – Divorce, Dissolution and Separation Act 2020
Children Act 1989 – UK Legislation – Children Act 1989
Child Arrangements Orders Guidance – Courts and Tribunals Judiciary – Judiciary Guidance on Child Arrangements
Child Maintenance Service (CMS) – UK Government – GOV.UK – Child Maintenance Service
Mediation Information and Assessment Meetings (MIAMs) – Family Mediation Council – Family Mediation Council – MIAMs
International Child Abduction and Hague Convention – UK Government – GOV.UK – International Child Abduction
HM Courts & Tribunals Service – Divorce Guidance – GOV.UK – Get a Divorce
Parental Responsibility – UK Government – GOV.UK – Parental Rights and Responsibilities

Disclosure / Legal Notice:

All names and identifying details in the following case studies have been changed to protect client confidentiality. These examples are based on real scenarios, but any resemblance to actual persons or entities is purely coincidental.

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