It is important to understand that cohabitees, no matter how long they have been living together, are not afforded the same rights upon the breakdown of the relationship as those which arise on divorce. The law does not recognise “common law spouses.” Arguably, this is an area of the law that is ripe for reform, because many consider it to be “unfair”.
Most unmarried parents seeking provision for their children are likely to turn to the Child Maintenance Service (“CMS”). The CMS has jurisdiction for all maintenance cases where the non-resident parent earns less than £156,000 gross per annum.
For some cases, mainly those where there is greater wealth, it is possible for the parent with care to make an application to the court under Schedule 1 of the Children Act 1989 (“Schedule 1 “) for further financial provision for the benefit of the child. This can include:
- top up maintenance (only if a maximum maintenance assessment has been made by the CMS);
- payment of school fees;
- lump sum(s);
- a “carer’s allowance” e.g. to provide for child care costs/a nanny, running a car to transport the child etc.; and
- the purchase or transfer of a property to the parent with care of the children, which will be returned to the parent who funded it, when it is no longer needed by the child(ren) e.g. they have finished their education or reached majority.
The Court’s power also extends to making orders for periodical payments and lump sums for children over the age of 18 in full time education or where there are special circumstances e.g. a disability.
The size of the award takes into account the non-resident parents resources (unless that parent has so much money that they can utilise the “millionaire’s defence”) and authority tells us that the father’s standard of living is relevant to the size of the award. In more modest cases, orders can still be made but the nature and size of the award will reflect the more limited pot that is available.
Each parent is required to provide full details of their current financial position, including capital and income, to enable the Court to decide on the appropriate financial provision to be made for the child.
The Court has discretion in deciding whether and how to exercise its powers under Schedule 1. The court is guided by a six-point checklist which has parallels with, but is narrower than, the checklist for parents of children who were married and are divorcing.
The Court must have regard to “all the circumstances of the case” including:
- (a) the income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future;
- (b) the financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
- (c) the financial needs of the child;
- (d) the income, earning capacity (if any), property and other financial resources of the child;
- (e) any physical or mental disability of the child;
- (f) the manner in which the child was being, or was expected to be, educated or trained.
There is sometimes a reluctance to pursue Schedule 1 claims in cases where resources are limited, because of the risk of costs. The general rule for Children Act 1989 applications that there is “no order as to costs” does not apply to Schedule 1 proceedings, so this means you could be ordered to pay the other party’s costs in particular circumstances. This is at least one reason why specialist advice should always be sought at the outset of your separation.