We are often contacted by clients who have been in cohabiting relationships with their ex-partners for a number of years, who despite having children and essentially living as a married couple, find that the fact they remain unmarried has a significant impact on the financial claims they may have following separation.

In situations where a couple have separated but were not married, the law applicable to their separation is much different than if they had been married, as cohabitees do not have the same rights or claims over each other as married couples. There is call for the law to change in this area but as yet it has not done so.

Financial claims are essentially limited to financial claims that relate to the children.

So what is available?

1.     Child maintenance

There is an obligation on a “non-resident parent” – the parent who has the children overnight for less than 50% of the time, to pay the other parent child maintenance. Child maintenance is assessed and based solely on the income of the paying parent, as the receiving parent’s income has no bearing on the amount due. Child Maintenance can be calculated using the online Child Maintenance Service calculator.

If parents cannot agree the appropriate level of maintenance, the parent who is due to receive the maintenance can apply to the Child Maintenance Service.

The process for determining how much the non-resident parent should be paying is broadly assessed as follows:

• maintenance is assessed on a percentage of the non-resident parent’s income, depending on the number of children they have to support;
• there is a reduction of 1/7 for each night per week, averaged over a year, that the child or children stay with the paying parent; and
• there is a reduction applied if the paying parent has any other children in their own household or if they are paying child support to more than one other parent.

The child support scheme only operates up to a certain amount of the non-resident parent’s income. If the non-resident parent earns more than the specified level, the court can make what is known as a top-up order. This is to cover situations where one parent is a significantly high earner to ensure that they paying a fair amount of maintenance.

In limited circumstances the courts can also make orders regarding maintenance to meet a child’s special needs attributable to a disability or for the payment of certain education or training costs. The court may also be able to make an order where a party or the child is resident abroad.

2.     Other financial provision for children

Under Schedule 1 to the Children Act 1989, a parent may be able to apply to the court for other financial provisions for a child from that child’s other parent.

The court can make an order providing for:

• a lump sum or sums to be paid, for example, to reimburse expenses connected with the birth of a child and to meet future expenses such as the purchase of a family car or to pay school fees;
• a property to be transferred or held in trust for the benefit of a child until a certain event occurs, such as the child reaching the age of 18 or completing their full-time secondary or university education, when the property will either be 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 Child Maintenance Service deals with maintenance (as discussed above);
  • in respect of educational expenses (such as private school fees); or
  • for expenses connected with a child’s disability.

When deciding what order to make, the court will consider:

• the income, earning capacity, property and other financial resources that each of the parents has or is likely to have in the foreseeable future;
• the financial needs, obligations and responsibilities that each parent has or is likely to have in the future;
• the financial needs of the child;
• the income, earning capacity (if any), property and other financial resources of the child;
• any physical or mental disability of the child; and
• the manner in which the child was being, or is expected to be, educated or trained.

Traditionally, these types of cases have concerned high net worth individuals and where there is plenty of money to go around.  In light of recent social trends, it is likely that the number of unmarried couples will increase and Schedule 1 therefore has a far wider reach than perhaps people believe or understand.  The Government at some point may change the law to give better rights to unmarried couples but for now the Court does have a number of powers to help parties separating to meet the needs of the child.

If you find yourself struggling financially to support your children and your and your ex-partner were not married, we strongly suggest you contact us to discuss your legal options. The fact that you were not married does not mean the door to the family court is closed.

We have expertise in dealing with these types of cases and have achieved many successful outcomes for our clients. Always take specialist family law advice and promptly.