The period following a separation can be a worrying time for stay-at-home parents, who may be adjusting to new circumstances and additional financial responsibilities. It is easy to develop anxieties regarding income and costs when you no longer have financial support from your spouse. However, in England and Wales, stay-at-home parents have legal rights in divorce and are well protected by the courts.
Under current legal frameworks, the role of homemaker and primary carer of the children is treated as an equal contribution to a marriage, and therefore you will not be penalised for prioritising the raising of a family over paid work during the marriage.
So, what are your rights as a stay-at-home parent and how do the courts protect your financial position? In this article we will explain what your rights are and advise on what steps you can take to ensure your rights are protected.
How the courts consider stay-at-home parents in a financial settlement
There are a range of factors that a court considers when deciding a financial settlement upon divorce and separation. These include:
- The income and realistic earning capacity of each party
- The financial resources available to the parties
- The housing needs and standard of living expectations of each party and their children
- The financial needs and responsibilities of each party, including meeting the needs of their children
- The length of the marriage
- The age and health status of each party
Courts in England and Wales will take childcare and running a home into consideration when deciding a fair divorce settlement, and will consider them to be equal in contribution to the other spouse working and earning a salary. With regards to stay-at-home parents, the courts will also consider how long you have been out of paid work and what childcare responsibilities you will have post-separation. These factors may restrict your earning potential moving forward, ability to re-enter the workplace, and your mortgage borrowing capacity, where relevant.
Your financial rights as a stay-at-home parent following divorce
Just because one party has made a greater financial contribution to a marriage, does not mean that this party receives a larger share of the marital assets or has stronger legal rights in divorce. The court will consider dividing marital assets such as property, savings, pensions and business interests, fairly, even where those assets are held in the sole name of your spouse. This means that your financial rights as a stay-at-home parent could extend to a share of:
- The family home – The starting point for division is 50/50%, however there may be scope for you to stay in the property with the children for a period of time, or to receive a larger share of the property if it is sold where this is required in order to meet your’s and the children’s housing needs. If you decide the sell the family home, the net proceeds may be split according to the reasonable needs of both parties, their ability to rehouse and capacity to raise a mortgage. One party can opt to buyout the other, so long as the division is fair and reflects the reasonable needs of both parties.
- Savings and investments – If these have been built-up during the marriage, they may be classed as marital assets and a stay-at-home parent has a fair and equal right to them, even if they are not held in your name.
- Pensions – Courts recognise that you have surrendered the ability to accrue pension contributions by being a stay-at-home parent, and therefore you have a fair and equal right to the pension provisions of the other party.
- Maintenance – You may be entitled to spousal maintenance payments from your spouse as a stay-at-home parent. This is not the same as child maintenance payments, which are legally due to the parent with greater childcare responsibilities. The provision of spousal maintenance largely takes into account the earning capacity of the stay-at-home parent, their income needs moving forward (including that of the children), and to some extent the standard of living they have been accustomed to during the marriage. Spousal maintenance may be appropriate if the stay-at-home parent has been out of work for a long time and will struggle to find immediate work, or if factors such as health or childcare significantly limits their earning capacity.
The court is always seeking a fair outcome, and often spousal maintenance is for a set adjustment period, as opposed to for the rest of your life. This may enable the stay-at-home parent to retrain or care for the children until school age, for example. In other words, it can be temporarily granted with the aim of enabling a pathway to becoming financially independent in the long-term.
It is also worth noting that spousal maintenance claims tend to be more relevant where your spouse is a higher earner and therefore can afford to pay spousal maintenance, at no major detriment to their own financial needs.
It is also important to note that these full statutory rights only relate to stay-at-home parents separating from a marriage or civil partnership. At present, if parents are unmarried and cohabiting, the stay-at-home parent would not have an automatic right to spousal maintenance, property, or pension sharing upon separation, regardless of the circumstances.
How do I enforce my rights as a stay-at-home parent after divorce?
There are a number of important steps you can take to secure your rights and protect your financial position after divorce, if you are a stay-at-home parent.
- Legal support – Secure professional legal support from specialists with knowledge of dealing with divorce settlements. This will help you understand your rights and the legal process.
- Financial information – Establish what the finances of the marriage look like, by seeking valuations and records of property, pensions and other assets, where legally available to you.
- Be patient – Do not rush to move out of the family home if you don’t need to (unless it is not safe to stay), and do not agree to any financial arrangements or sign any documents without first seeking independent legal advice.
- Plan ahead – Start to think about the future and whether you will be able to return to work. A willingness to do this and having a coherent and realistic plan in place can be received favourably by the courts in terms of a settlement.
It is important that you understand your rights as a stay-at-home parent so that you can manage the divorce process and plan for the future. Central to this is legal advice from experienced divorce solicitors, and at Ison Harrison Solicitors we have a team with specialist expertise in advising on financial settlements and ensuring stay-at-home parents and their children are suitably protected. So, if you find yourself in this situation, contact our team today.
