Part 2: Divorce in Finland – What happens when you have children?
In the first part of the blog series – Divorce in Finland – we discussed how to initiate divorce proceedings. In this second part we will discuss what the process is when you have children with your spouse.
Part 1: Divorce in Finland – 6 things to take into account
Part 2: Divorce in Finland – What happens when you have children?
Part 3: Divorce in Finland – How can I protect my assets before filing for a divorce?
Part 4: Divorce in Finland – How is our matrimonial property divided?
The divorce process is understandably more complicated when children are involved. By that we mean that if you have any children with your ex-spouse or soon-to-be ex-spouse, it is not only about your financial matters that need to be handled, but also some legal matters relating to your child, such as the amount of child maintenance, custody, residence and right of access (visitation rights) need to be agreed.
Agreement or court judgement?
All of the aforementioned matters relating to a child can be agreed upon between the parents. However, in order for such an agreement to be enforceable, it must be in writing and formalized either at the social welfare board or at the court. And of course the very first thing that needs to be ascertained, is whether a Finnish court has jurisdiction over the case and which laws apply.
When does a Finnish court have jurisdiction?
A Finnish court has jurisdiction if the child is habitually resident in Finland when the matter is instituted. The residence of the child also determines whether the social welfare board can formalize any agreements.
Furthermore, it is also possible to have the case tried in Finland when the matter relates to custody, if there is a good reason or the child has another close connection to Finland.
The habitual residence and the authority of a Finnish court is not always as straight forward as it may appear, so this should always be the first step to ascertain to avoid any unnecessary legal costs due to initiating the proceedings in the wrong country.
A child has a right to adequate maintenance, which is normally paid monthly in advance. In some cases it is also possible to pay the maintenance using a lump sum.
The amount of the maintenance can be agreed upon between the parents, as long as it covers the child’s needs. The court will then assess whether the amount and other terms are in the child’s best interest and in accordance with the applicable laws. Alternatively the agreement can be formalized at the social welfare board, in which case a more thorough calculation of the child’s expenses and of both parent’s income and expenses is needed.
If there are any changes in the child’s maintenance needs or in your, or the other parent’s, financial circumstances, then you may seek for adjustment in the maintenance to be paid, by either a court judgement or by a new agreement formalized at the social welfare board. The effect of the claimed change must, however, be at least 15% in either direction.
The maintenance is paid until the child turns 18. After the age of 18, the child may be entitled to recover expenses from both parents for education on an upper secondary education such as ”lukio”. These expenses the child will have to claim by him/herself and through the court once he/she has reached the age of 18.
The custody of the child, during marriage and after divorce, is assumed to be joint if the parents were married at the time of the child’s birth. This means that any other arrangement or agreement has to be enforced at either the social welfare board or at the court to take effect. (This in effect means that if the parents were not married at the time of birth, and the paternity was never confirmed officially, then only the mother will have sole custody.)
The child can then remain in joint custody even if the other parent lives abroad. It is, however, for practical reasons often more common to order the custody to the parent residing in Finland.
If the parents retain joint custody, the consent of both parents is needed for more significant decisions in the child’s life. Such decisions relate to matters such as religion, surname, obtaining a passport, residence and education.
It is often mistakenly assumed that the child automatically resides with the mother. In today’s world, the fathers in general are claiming an equal footing on this and the courts are paying more attention to the child’s circumstances, in stead of merely focusing on the gender of the parent as a basis or as a precedence.
The Act on Child Custody and the Right of Access was amended in Dec. 2019 allowing the child now to reside with both parents. As a result, the parents are now in a more equal footing in relation to the child and in the the ability to be part of the day-to-day decision making relating to the child.
Before the amendment, it was only possible to have week-to-week visitation rights.
Right of access
The child has a right to maintain contact and meet with the parent he/she is not residing with.
The scope of the right of access can be agreed to be as broad or as constricted as the parents agree upon. However, it is advisable to use common sense and to take into consideration whether e.g week-to-week visitations are possible in the first place if you live abroad and the child goes to school here.
If the matters cannot be solved between the parents, then the court, in resolving the matter, will take into account both parties wishes, in some cases even the child’s wishes (children over 12 yrs) and any issues relating to the practicability and enforceability of the sought extent of the visitation rights.
Visitation rights and traveling
Even if you are seeing your child only during your visitation rights, you cannot take the child abroad without the other parent’s written consent. If you do so and the other parent has sole custody, you may be charged with child abduction.
So it is of utmost importance to agree in writing also when you can take the child abroad (maybe for a holiday or to visit your home country). If a separate written consent is needed for each trip, it should include the length of the trip and to which countries or continents you are allowed to travel together.
Even if you have joint custody, you still need to agree on any trips abroad with the other parent.
The process at the social welfare board is free for both parents whereas the court process is free only if the parent in question is entitled to Legal Aid. The Legal Aid may cover all costs involved to the party in question or a percentage of the costs.
The process is completely paid for through Legal Aid only if the child has no income or savings and the process involves maintenance issues only. If the process deals with any other issues, such as custody, residence and right of access, the parent’s income and expenses that are taken into account.
If you believe you may be eligible for legal aid, you can contact your closest legal aid office.
Regardless of whether you are on good terms with the other parent or not, and even if you trust him/her 100%, it is nevertheless always strongly advisable to have any agreement relating to your child formalized at the court or at the social welfare board. Your rights, or the child’s rights, can only be enforced if the agreement has been formalized.
How to contact us?
In the next blog post in this series we will explain what steps you can take to protect your assets before filing for a divorce.
The Brussels IIa Regulation