Care of Children, Humphries Kirk

Frequently Asked Questions – Care of Children

| Published on April 25, 2016

In a series of ‘Frequently Asked Questions’ posts, we will be tackling the common questions relating to divorce, cohabitation, prenuptial agreements and care of children. Deciding who will be responsible for your children on the breakdown of a marriage is an emotional subject and one that needs to be arranged carefully.


How can I be sure that I will be the only one responsible for our children? Can I guarantee financial support?

If you and your former partner are married, you both have equal parental responsibility for the children.  This is also likely to be the case if you were cohabiting, and the children’s father is named on their birth certificate.  Therefore you need to reach an agreement as to how much time the children will spend with each of you.

If you are divorcing, financial support for you and the children (assuming it is agreed they spend the majority of the time with you) will form part of the financial settlement between you and your former spouse. This will depend on what assets you have together, but the priority of any financial settlement is ensuring the needs of any minor children are met.

If you are not married, but cohabiting, then making the same assumption as above, your former partner would only have to pay you child maintenance in accordance with the Child Maintenance Options service (previously known as the CSA). You might need to seek advice as to whether you can make any other financial claim against your former partner for the benefit of the children, but the position is different if you were married.

Do I have to move out of my home I own jointly with my partner? We have young children and it might result in them having to move schools. I want this to affect them as little as possible.

There are two answers to this question – it would depend on whether you were married to your partner or not?

If you were married and separated, a settlement would need to be negotiated, and the priority would be ensuring the needs of the children are met. If possible, and it was affordable, it is likely that an agreement would be reached for you to stay in the house.  It does depend on whether it is financially viable for you to remain in the house.

If you were simply cohabiting, then strict property laws apply. You would need to be able to buy out your former partner’s share of the property and release them from the mortgage.  If this was not possible, (or your partner could not buy you out and release you from the mortgage) the house would be sold and the equity divided between you according to how you own the property.

I chose not to have a career in favour of raising our children. Will I be penalised for this in the divorce?

You will not be penalised for a decision made by the two of you during the marriage that you decided stayed at home and looked after the children.  The court will want to achieve a fair financial settlement in all the circumstances.  Any agreement will need to reflect that you have been out of the workforce, and may not be able to restart your career.

Can I change my children’s surname to my maiden name when we divorce?

You can only change the children’s surname to your maiden name if their Father consents to the change, or by court order.

As the father, am I entitled to keep the children with me should I leave the marriage?

Neither you nor your wife are “entitled” to keep the children with you. You each have equal parental rights for the children, and as such need to reach an agreement as to where the children should live, and how much time they should spend with each of you.  If you and your wife cannot reach an agreement, ultimately, a court would be asked to make that decision for you.  It is therefore better to agree on how you and your wife will co-parent your children following a breakdown of a marriage (or any relationship).


Disclaimer: These answers do not constitute legal advice, and should not be relied upon. The answers are intended to be useful but do not replace legal advice tailored to your individual circumstances.

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