Divorce and child custody, legally referred to as child arrangements in the UK, are among the most significant legal issues families face when a relationship breaks down. This article explains the official legal process, your options for agreeing arrangements, and when court involvement may become necessary, with references to government guidance and legislation.
1. Divorce in England & Wales
What Is Divorce?
Divorce is the formal legal ending of a marriage. In England and Wales, you can apply for a divorce online or by post through the court service if your marriage has irretrievably broken down.
No-Fault Divorce
The Divorce, Dissolution and Separation Act 2020 introduced a no-fault divorce regime, which came into effect on 6 April 2022. Under this legislation, applicants no longer need to prove wrongdoing such as adultery or unreasonable behaviour. This change aims to reduce conflict in divorce proceedings and give couples greater control over the process.
Steps in the Divorce Process
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Apply for Divorce: Submit a divorce application online or by post. Court fees currently apply, though you may qualify for help with fees if you are on a low income.
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Conditional Order: Once the court accepts your application, you will receive a conditional order (formerly known as ‘decree nisi’).
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Final Order: After a statutory waiting period, you can apply for the final order (previously ‘decree absolute’), which legally ends your marriage.
Additional Considerations
Divorce is separate from other legal matters, such as child arrangements or financial settlement. You can address child and financial issues with or without the divorce application, but separate legal applications may be required.
2. Child Custody — Now Known as Child Arrangements
What Are Child Arrangements?
In modern UK family law, the term “custody” is no longer used. Instead, the law focuses on child arrangements, which determine:
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Where a child lives
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When and how a child spends time with each parent
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Other contact arrangements
This change reflects a shift from parent-centric terms like “custody” or “access” to a child-focused framework.
Agreeing Child Arrangements Without Court Involvement
Parents and carers are strongly encouraged to reach an agreement out of court where possible. If both parties can agree on arrangements, they may record this in a Parenting Plan, which is not a legally enforceable order but can support future decisions.
You can also seek help from:
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Mediation services with government-assisted vouchers available in some cases
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Citizens Advice
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Advice Now
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Children and Family Court Advisory and Support Service (Cafcass)
When Court Orders Are Needed
If you cannot agree on child arrangements after attempting mediation, you may apply to the family court for a Child Arrangements Order (CAO). A CAO is a legally enforceable court order specifying details such as who the child lives with and when they spend time with each parent.
To apply for a CAO, you typically file a C100 form with the court and attend a Mediation Information and Assessment Meeting (MIAM) beforehand, unless exempt (e.g., in cases involving domestic abuse).
3. Making Decisions in Court
Child’s Welfare as the Primary Consideration
When the court must decide child arrangements, the child’s welfare is the paramount concern. Judges will consider:
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The child’s physical, emotional, and educational needs
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The parent’s ability to meet those needs
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Any history of family violence or abuse
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The child’s own wishes, depending on age and maturity
There is no automatic preference for either parent based on gender or marital status. Each case is assessed on its individual circumstances.
Role of Cafcass
In many cases, Cafcass (Children and Family Court Advisory and Support Service) will be involved to safeguard the welfare of the child. Cafcass officers may interview the child, speak to parents, and provide reports to the court outlining recommendations.
4. Supporting Families Through the Process
Mediation and Alternative Dispute Resolution
Government guidance emphasises exploring alternatives to court, such as mediation and pre-court support programmes. These approaches help families reach workable agreements earlier and reduce stress and cost.
Child Maintenance and Support Services
Separation and divorce can also involve child maintenance considerations. The Child Maintenance Service can calculate and enforce maintenance payments to support the child’s financial needs when parents are separated.
5. Key Official Legal Frameworks
Several laws and legal principles underpin divorce and child arrangements in England and Wales:
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Divorce, Dissolution and Separation Act 2020 legal basis for no-fault divorce.
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Children Act 1989/2014 statutory framework for children’s welfare and child arrangements (including Child Arrangements Orders).
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Family Law Act 1986 covers jurisdiction and related child-related issues.
Understanding the legal framework helps you navigate your rights and responsibilities when a family structure changes due to separation or divorce.
Conclusion
Divorce and child arrangements are separate yet interconnected parts of family law in England and Wales. While divorce legally ends a marriage, child arrangements focus on your child’s welfare and living/contact arrangements. Government guidance encourages families to agree wherever possible, with court orders available when necessary to protect the child’s best interests.