Cohabitation and Financial Provision for Children

The Office for National Statistics reports that the fastest growing type of family in the UK is the cohabiting couple. Out of the 19 million families in the UK 3.3 million of these are unmarried couples and 1.25 million of these families have  one or more dependent children.

It is becoming more well known that there are stark differences in the way the law treats married and unmarried couples on their separation and one particular area that is very different is how the law provides for any children of the family.

In terms of child maintenance there is no fundamental difference. Whether married or unmarried, parents have a legal obligation to maintain their children. It is usual for the parent without day to day care of the children "the paying parent" to pay the parent with day to day care "the receiving parent" a weekly or monthly by of child support.  Parents are encouraged to agree between them what will be paid but if this is not possible the Child Maintenance Service (formerly the CSA) has the ability to make an assessment as to how much this payment should be based on a fixed formula which considers the paying parent's income and how many nights the children stay with the them amongst other things. There is a very useful calculator which can be found here.

Where the law does differ is in terms of its approach to the financial needs of the children. When a married couple separate and resolve the financial matters arising from their marriage one of the key concerns of the court is the welfare of any minor children of the family. This can and often leads to a settlement or order which considers and provides for the needs of the children as well as those of the parents.

There is not a similar law which exists for unmarried couples and any dispute as to property should be divided is dealt with under Trusts law which simply considers the contributions and agreements between the parties and not their needs or the needs of any dependent children.

However, in some circumstances the parent with day to day care of a dependent child or children may have a claim against the other parent under Schedule 1 of the Children Act 1989. This schedule allows a parent to make a claim to meet the financial needs of a dependent child.

There are a variety of orders that can be applied for under this schedule which include the transfer of property to provide a home for the child. This would usually last during the child's minority and once the child reaches 18 or completes their education the property or share of the property would commonly revert to the other parent.

It is also possible for a parent to make a claim for a lump sum for the child to cover necessary capital expenditure or to apply for periodical payments to cover costs over and above usual child maintenance. This could be in circumstances where the paying parent earns over the Child Maintenance Service threshold (£3000 gross per week) or to cover the costs of a child's disability or to pay private school fees.

When deciding whether to make an order under Schedule 1 of the Children Act 1989 the court must have regard to a number of considerations these include the financial needs of the child and the financial needs, resources and circumstances of both of the parents.

If you would like to speak to someone in more detail regarding your legal rights please contact one of our specialist family lawyers.

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