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Legal Guides - Family break up and Children  -   Cohabitation

Family break up and Children

When your relationship breaks up you will have lots of things to think about and your major concern will be for the welfare of your children. 


You and your partner should attempt to reach agreement about where the children should live and with whom.  You will also need to try and agree lots of other things, such as when each parent will see the children, whether both parents will see the children on the children’s birthdays, other special days and how Christmases or school holidays will be arranged.  You will also need to think about how each parent is going to be involved in the children’s education, religious upbringing (if appropriate) and medical treatment.  The Government has produced a Parenting Plan booklet which can be very useful for parents to go through together to plan for the future, so each parent is clear on what the arrangements are.


If agreement cannot be reached, you may wish to consult a mediator, who will try to facilitate communication with a view to resolving differences and help you to come to an agreement.  It is also possible to negotiate via solicitors.


There are support services available for parents and/or children who are experiencing a family breakup and who may be struggling to come to terms with it or to understand what is going on.   Sometimes children are caught up in the conflict that is going on between their parents and may want to seek confidential support.


If parents cannot agree what the arrangements are to be, either parent may apply to the Court for a Child Arrangements Order. 



A Child Arrangements Order may say which parent the children will live with.  A Court may sometimes make a shared or joint residence order if appropriate.  This sort of arrangement is becoming more popular and allows the children to spend a more balanced amount of time with each parent, although it need not be strictly 50/50.



These orders require the parent with whom the children live to facilitate contact between the children with the other parent.  The order may define exactly what contact shall take place and when.  There may be supervised or unsupervised contact, staying contact, visiting contact and/or indirect contact e.g. letters, cards and telephone calls.


Court Proceedings

The Court proceedings are straightforward to issue.  Sometimes a Children and Family Reporting officer (“CAFCASS reporter”) will be appointed whose role is to ascertain what is best for the children and to make recommendations.  As part of the Court investigation, he or she will speak with the parents and, possibly, the children, as well as relevant third parties. 


How many hearings there are depends on how complex the issues are and how much disagreement there is.  On average, there are usually two or three hearings in order to obtain a Child Arrangements Order.  It is still possible to agree the terms of an order after an application to the Court has been made and without the necessity of asking the Judge to make a final order.  This means the proceedings will not last as long and costs can be saved.  The terms of agreement will be embodied in an order made by consent.


General Principles

When the Court determines any question relating to the children, its overriding consideration will be for the welfare of the children.  The Court must also consider the following:

·       The ascertainable wishes and feelings of the child

·       The child’s physical, emotional and educational needs

·       The likely effect on the child of any change in his circumstances

·       The child’s age, sex and background and any relevant characteristics

·       Any harm the child has suffered or is at risk of suffering

·       How capable each of the parents is at meeting the child’s needs


Parental Responsibility

Parental Responsibility can be defined as all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and the child’s property.


A mother automatically acquires parental responsibility at the birth of her children.  A father may acquire parental responsibility for his children by being married to the mother or by the mother’s agreement, a Court order, or by being appointed the child’s guardian.  Since 2003 a father who is named on the child’s birth certificate will automatically acquire parental responsibility, even if he is not married to the child’s mother.


If you have parental responsibility, you have the right to take part in decisions such as your child’s education, medical treatment and religious education.  You also have the right to certain information e.g. school reports and medical information.


The law relating to cohabitants on separation is very different to that if you were married.  Partners do not acquire any legal rights to property and assets from the other just because they live together.  There is no such thing as a common law husband or wife. 



A co-habitant does not enjoy any right to occupy the family home if they do not legally own the property.  Whether a partner is entitled to any share of the assets on separation is complicated and will very much depend on the facts of the case.  If the assets are held in joint names then each partner is likely to be entitled to a share.  If the assets are not in joint names then the partner who does not own a share will have to establish that he or she has an interest in the asset.  Establishing an interest is complicated and is governed by Trust Law.  If a partner cannot establish an interest in an asset then in certain circumstances the partner could acquire property or assets for the benefit of any child of the parties.  If this is the case, then the assets will ordinarily be used to benefit the children until they are independent, after which time the assets will revert to the parent who originally owned them.



A partner does not have any right to claim part of the other partner’s income other than for child maintenance if there is a child.  The Child Maintenance Service, not he court, will generally deal with child maintenance.  The Child Maintenance Service governs the minimum rate of expected child support a non resident parent should pay to the parent with care.  What is payable is calculated according to a formula with reference to gross income.  There are adjustments that can be made if there are other relevant children or if the child stays with the non resident parent.  If the parent who no longer lives with the child is very wealthy or has a high income, then the parent who lives with the child may claim extra financial provision for the benefit of the child.  This aspect is governed by the court.



A mother of a child automatically acquires parental responsibility for any of her children at birth.  An unmarried father, however, does not enjoy this position.  Until 2003 the law stated that an unmarried father could only obtain parental responsibility for his child if the mother consented, the court ordered parental responsibility or a residence order or by being appointed the child’s guardian.  After 1 December 2003 unmarried fathers can obtain parental responsibility if his name appears on the birth certificate at the registration or re registration of the birth.  If his name does not appear he will have to obtain parental responsibility by the ways just described.  The new law governing parental responsibility is not retrospective.


Same sex partners

The law changed significantly on 5 December 2005 as far as it relates to same sex partners.  For those who choose to register their partnership they can have a civil partnership.  The civil partnership can be dissolved in a very similar way to a marriage and similar financial and property obligations and rights are applied.  Instead of a divorce, civil partners will apply to the court for dissolution of the partnership.  There is also further provision in connection with children where a civil partnership exists.

Since 2016 same sex marriage has been legal and the divorce process is exactly the same as heterosexual marriage dissolution.