If you are facing divorce or separation as a mother, you are likely to be feeling vulnerable. Whether you stay at home to look after your children or you go out to work as well, dealing with the changes that a divorce can bring is often stressful.
We take a look at your rights as a mother during divorce and what the court will take into account when dealing with parental responsibility and arrangements for children.
We know that this can be an exceptionally difficult time for parents. Our family law team are experts in representing mothers during divorce and separation. If you need guidance or legal representation, we will be happy to hear from you. We have the expertise to ensure that your rights are observed and that you secure the right legal outcome for your family.
Parental Responsibility as a Mother
Parental responsibility refers to the legal rights, duties and obligations that parents have in respect of their children. Someone with parental responsibility can make decisions and authorise actions on behalf of their child. They also have the right to be consulted about major decisions in their child’s life, such as which school they will attend, which religion they will follow and what medical treatment they will receive.
Birth mothers automatically have parental responsibility for a child. If a child’s father was married to their mother at the time of the birth, they will also have parental responsibility. Unmarried fathers will have parental responsibility if they are named on the child’s birth certificate.
This means that while most mothers will automatically have parental responsibility, the majority of fathers will also have it and will need to be consulted over various issues.
For more information, see our comprehensive parental responsibility guide.
What are Your Maternal Rights in a Family Court?
If you are divorcing or separating, you will need to make new arrangements for your child. Your solicitor can help to negotiate on your behalf where necessary. Once you have agreed on where your child will live and how long they will spend with each parent each week, your solicitor can put this in writing and ask the court to seal it, making a legally binding child arrangements order.
If you are not able to reach an agreement, you will usually need to consider going through the mediation process. This involves a session with a trained family mediator, known as a Mediation Information and Assessment Meeting, or MIAM. You can decide to attend mediation with your child’s other parent to try and resolve your disagreements or alternatively, once you have been to an MIAM, you can ask the court to make a child arrangements order.
What is Included in a Child Arrangements Order?
You can include what you want in a child arrangements order, to give you and your family clarity over issues such as residence and contact and who will take on various responsibilities. Issues that are usually dealt with include:
- Who a child will live with and where this will be
- How long they will spend with their other parent
- Where these visits will happen
- What will happen in school holidays
- How they will keep in contact with each parent while they are not together
If the court is asked to decide, it will always consider what it believes to be in the best interests of the child first. It does not favour mothers over fathers but will consider a range of points when making a decision.
As a mother, if you have taken on the bulk of the childcare to date, the court is likely to take this into account when making a child arrangements order. This means that the court could order that your child live with you. If there is no reason for your child not to see their father, the court is likely to stipulate that they should spend some time together as well.
The court prefers that a child has a meaningful relationship with both parents, so it will not stop a child from seeing their father unless there is a reason to do so.
In making a child arrangements order, the court will look at the welfare checklist as set out in section 8 of the Children Act 1989. The list is as follows:
- The wishes and feelings of the child, taking into account their age and understanding of the situation
- Their physical, emotional and educational needs
- The likely effect of any change in circumstances
- Their age, sex, background and any other relevant characteristics
- Any harm the child has suffered or is at risk of suffering
- The abilities of each parent to meet the child’s needs
- The range of powers available to the court
Where a mother has had the main caring role for a child, the court will frequently ensure that there is continuity of care, provided it believes that this is in the child’s best interests.
Maternal Fights for Same-Sex Couples
The law is similar for same-sex couples. A birth mother will automatically have parental responsibility, while a same-sex partner who is married to the birth mother or in a civil partnership with her will also have this if they are named on the birth certificate.
If a same-sex partner is not married to the birth mother, then they will need to enter into an agreement to secure parental responsibility. This can be done with the consent of the birth mother. If the birth mother does not consent to this, the court can be asked to grant parental responsibility.
The court will take the same criteria into account when deciding on child arrangements.
For information on our services, see child arrangements orders.
For details about how orders are made and what goes into them, see our article on making child arrangements.
Defending Maternal Rights in the Family Court
We represent mothers in proceedings to secure the right child arrangements following divorce or separation. Our family law solicitors understand that this is likely to be a very difficult time and are sympathetic and helpful.
We have a strong track record of success in obtaining the best outcome for families and would be happy to help you ensure the right order is made for you and your children.
If you would like to speak to one of our expert family lawyers, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss how we can help. We have offices in Birmingham, Northampton, London and Wellingborough.
FAQ
What maternal rights do UK mothers have?
Maternal rights in the UK typically include the right to maternity leave, access to benefits, and legal protection against discrimination.
According to UK family law, do fathers have equivalent rights to mothers?
Under UK family law, fathers do not necessarily have equivalent rights to mothers, but they have rights and responsibilities regarding their children, such as parental responsibility, custody, and visitation rights, which can be established through legal processes.
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