Unmarried With Children and Splitting Up

11 Jul 2024 | Lisa Pepper
two children in the woods

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Unmarried with Children? What are your Financial Rights?

Know Your Financial Rights Under Schedule One Children Act 1989

A claim under Schedule One of the Children Act 1989 enables a parent to seek financial assistance for a child. It is most often used in cases where the parents are not married.

Unlike married couples and civil partnersunmarried couples in the UK do not automatically have rights to each other’s property or to financial support when their relationship ends. This is true even if they have lived together for a long time or have children together.

This can leave some unmarried parents in a difficult financial situation, especially when it comes to supporting their children. There is a frequent misunderstanding that there is such thing as a common law husband or common law wife but there is no such thing in law

What is Schedule One of the Children Act 1989?

Schedule One of the Children Act 1989 provides an avenue for a parent (ordinarily the parent with whom the child lives) to seek financial provision from the other parent.

What does the court consider in a Schedule One claim?

The court considers factors like income, earning capacity and property ownership when deciding these claims, in a similar way to how financial settlements in a divorce are evaluated. However, there is a significant difference between a Schedule One claim and the various financial claims that can be made upon divorce.

Claims under Schedule One can only relate to the needs of the children, not the needs of the parent, save for cases where maintenance can include an amount for childcare to enable a claimant parent to return to work – see the case of PG v TW [2021] where the Judge said:

“I respectfully suggest that the concept of a carer’s allowance is past its utility… my figure acknowledges and takes into account the mother’s modest income and the need for back up child care and housekeeping to enable her to work without anxiety during the day, through inevitable childhood illnesses and school holidays.”

Support under a Schedule 1 claim will generally only last until a child reaches 18.

Who can apply for Schedule One support?

A parent, guardian or person named in a Child Arrangements Order as a person with whom the child is to live may apply for an order under Schedule One. The application to Court will ordinarily be made by the “resident parent” – the parent doing most of the childcare.

Frequently, there are child arrangements where the care of the child and the number of nights the child has with each parent are shared (not necessarily 50/50) and often the terms “resident parent” and “non-resident” parent are not defined in a child arrangements order because the arrangements have been agreed without one. They can be contentious labels, sometimes best avoided in negotiations where you are hoping to reach a consensual agreement. In this blog however, to make the explanation of the law easier, we will refer to the terms resident parent and non-resident parent, with the resident parent being the main carer of the child and the financially weaker party bringing the claim.

Note also that a child over the age of 18 may apply to Court in their own right in certain limited circumstances, such as if they are still in education or have disability needs.

What can be claimed under Schedule One?

There are four types of orders you can apply for. The most common claim is for housing provision, either through a lump sum payment or property transfer.

  1. Property Transfer Order

If the couple’s family home is owned by the non-resident parent, the resident parent can apply for it to be transferred to them, or for the property to be placed in a trust, for the benefit of the child. This is to ensure the child has somewhere to live.

The order normally lasts until the child reaches adulthood, at which point the property transfers back to its rightful owner.

  1. Periodical Payments Order

Ordinarily, the Child Maintenance Service (CMS) deals with child maintenance payments to ensure the non-resident parent contributes to the cost of raising the child. However, the non-resident parent can apply for regular payments under Schedule One if the CMS cannot deal with child maintenance. This might happen where:

  • The non-resident parent lives in a different country outside the CMS’ jurisdiction.
  • The non-resident parent is a high earner making more than £156,000 annually (£3,000 per week) gross, in which case the resident parent may claim ‘top up’ child maintenance.
  • Payments are required to meet the expenses associated with the child’s disability, private school fees or training for a trade, profession or vocation.

Periodical payments will usually cease by the child’s 18th birthday unless the child is in education or vocational training, or there are special circumstances such as a physical or mental disability.

  1. Lump Sum Orders

The court can order the non-resident parent to make a one-time payment to cover specific expenses, such as a home for the child, baby equipment, medical or dental fees, or the purchase of a car. It is not for general costs of living, or back payment of child support, and the lump sum must be for the child’s benefit.

The Court can make many lump sum orders. Even if a lump sum for the benefit of a child has already been obtained, the resident parent can still make other Court applications as needs arise.

  1. Legal costs

Usually with Children Act proceedings (such as for Child Arrangements Orders), each party will pay their own legal costs. There is provision in case law to allow a resident parent to apply for interim maintenance towards their legal fees; this is known as an A v A application, named after the first case to deal with the point: A v A [2001] 1 FLR 377 .

Can I also get a share of the family home?

When cohabiting couples separate, the question inevitably arises as to who gets the family home. Disputes often arise where the home is held in one name, but the non-owning party has made significant financial contributions on the understanding that they have a right to live in the property and some share of it is “theirs.”

This is known as a beneficial interest in the property. It might arise where the non-owning half of the cohabiting couple pays the deposit, makes mortgage payments, or pays to upgrade or maintain the home.

Claiming a beneficial interest in property involves an application to the court under the Trusts of Land and Appointment of Trustees Act 1996. However, remedies under this Act are limited and might involve an order for the sale of the property so each person can access their share. The resident parent may not want this to happen if their biggest priority is to provide a home for the child.

A successful claim under Schedule One ensures the child has a suitable home irrespective of property ownership. The two claims are often run together—a solicitor can advise you which application should take the lead.

How do you make a Schedule One claim?

It is really important first of all to attempt Non-Court Dispute Resolution (‘NCDR’). If that fails, the forma Court process starts with an application to Court, in a standard Form.

Both parties must then exchange financial statements, disclosing full and frank details of their income, assets and liabilities. Once an understanding of the financial landscape is established, the court will list the case for a Financial Dispute Resolution hearing.

If the parties are unable to reach an agreement, the case may proceed to a final hearing where a Judge will make a decision based on the evidence presented.

You will need a solicitor to help you through this process. The quality and detail of your financial disclosures and budget, outlining the financial needs of the child, will be crucial in building credibility for your case.

Expert evidence may also be necessary to back up your claims, especially in cases involving complex financial structures or when assessing the needs of a child with disabilities.

How does the court decide a Schedule One claim?

The court will consider a range of factors when deciding a Schedule One claim. These include the income, assets and earning capacity of each parent, any financial commitments the parents have, the financial needs of the child, the standard of living enjoyed by the child before their parents’ separation, and any specific educational or physical and mental health needs.

The Court will ensure that the financial provision is tailored to the child’s needs.

Do you have to be unmarried to claim under Schedule One?

While Schedule One is most commonly used to help unmarried parents, it can also be used by previously married parents or those who have ended a civil partnership. In the case of MB v KB, for example, a mother who had secured periodical payments and the right to live in a house owned by the husband’s family as part of a divorce settlement under the Matrimonial Causes Act 1973, was also permitted to apply for a settlement of property and lump sum order under Schedule One.

The mother may have concluded her own claim for housing, but the court agreed that she still had the right to claim on behalf of the child. Lisa Pepper, Head of Divorce and Matrimonial Finance at Osbornes Law, acted for the mother in this case.

Whatever your relationship situation, if there is a child involved, Schedule One may be able to provide valuable financial support to ensure their needs are met. The important thing to remember is that this claim is about the needs of the child, not the parent.

How we can help

Lisa Pepper is Head of Divorce and Matrimonial Finance at Osbornes Law She is also an accredited mediator. She is ranked as a leading lawyer in Chambers UK, Chambers HNW, The Legal 500, Spears HNW directory and Tatler Advisory.

To speak with Lisa or her team please call 020 7485 8811 or complete the form below.

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