With many couples now choosing not to marry, we are often contacted by clients who have been in cohabiting relationships with their ex-partners who, despite living together and having children, are often left surprised that they are not entitled to the same financial claims open to those who are married.
In situations where couples are unmarried and subsequently separate, the legal position is very different from that which applies to those who are married. This is because cohabitees do not have the same rights or claims over each other as married couples.
What are the financial relief options available to unmarried couples with children?
There are three potential options available for unmarried couples with children:
- Child maintenance
- Financial provision under the Children Act 1989
- Property claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)
Child maintenance is an arrangement between two parents and is usually payable by the non-resident parent, i.e., the parent the child does not live with. It is a contribution towards the everyday living costs (such as household expenses, food, clothing etc.) of the child.
Many parents are able to reach an agreement between themselves with regards to child maintenance voluntarily either by agreement or using the calculations on the Child Maintenance Service Calculator. For parents who are unable to agree the amount of maintenance, they can apply to the Child Maintenance Service directly online.
Child maintenance is calculated using a number of variables and factors such as:
- How many children you have;
- The income of the paying parent;
- How much time the children spend with the paying parent;
- Whether or not the paying parent is also paying maintenance for other children.
Child maintenance is usually paid until the child is 16 or 20 if they are in further education.
Although the court has limited powers in respect of child maintenance payments, they do have the powers to make a ‘top-up’ order which is an order made by the court requiring the parent (with whom the child does not spend the majority of time ) to make child maintenance payments in addition to the calculation already made by the Child Maintenance Service. The non-resident parent’s gross income must exceed £3,000 per week or £156,000 per annum for this to apply.
Financial provision for children under the Children Act 1989
There is an avenue through which an unmarried parent can obtain financial assistance from the court in respect of their child from the other parent. This is under Schedule 1 of the Children Act 1989.
The court can make an order for one parent to provide to the other:
- A lump sum or periodical payments which can cover expenses such as paying school fees
- A transfer of property or for a property to be held in a trust for the benefit of a child until a triggering event such as the child reaching the age of 18 or completing their full-time secondary or university education, upon which the property is then transferred back to the paying parent or sold and the proceeds given back to the paying parent
- Regular payments of child maintenance where the non-resident parent’s income is higher than the limit where the CMS deal with maintenance. i.e. the ‘top-up’ payments.
The Court will have regard to the following when decided what order to make:
- The financial circumstances of each parent both now and in the future;
- The financial needs of the child;
- The income, earning capacity, property and other financial resources of the child;
- Any physical or mental disability of the child;
- How the child was being or was expected to be educated.
If one or both of the couple owns a property, there may also be claims under existing property law. It may be that there is a jointly owned property to be divided between them or that one is able to make a claim under trust principles against a property owned by the other.
This may include, for example, a situation where one person has contributed money to the property or where the other person has promised them a share in a property, but it is still held in their sole names. These claims are complex and are governed by strict property law legal principles, rather than family law concepts of “fairness” or “sharing” which would apply on a divorce.