There is a lot of misinformation surrounding unmarried couples (including the age-long myth of “common law wife”) and the financial provision they are entitled to. This often extends to what financial relief is available to parents for the benefit of the children over and above the statutory entitlement provided by the Child Maintenance Service (CMS).

This article will look at some of the differences between the financial provision available for children where their parents are married and unmarried (over and above that provided by the CMS).

Unmarried Couples

When an unmarried couple separates the Court has wide powers when considering an application for financial provision for children under Schedule 1 of the Children Act 1989 (“sch 1”). The orders the Court can make include:

  • Lump sums – sum(s) of money for capital needs (e.g. furnishing a property; clearing debts relating to the costs of bringing up children; buying a reliable car to transport the children)
  • Property settlement – funds can be sought to create or boost a housing fund to house the children (the property or top-up element of the equity achieved under “sch 1” will revert back to the paying parent’s ownership, usually when the children finish education)
  • Interim provision to cover the claiming parent’s legal fees incurred for the benefit of the child (which can also cover the costs of proceedings relating to their care arrangements where there is an imbalance of ability to fund legal representation and other criteria are met).
  • Periodical Payments or “maintenance”– where the paying parent makes monthly payments to meet the needs of the children and main parent (although these can only be ordered where the CMS does not have jurisdiction, for example, if a maximum CMS assessment has been made because the paying parent earns more than £156,000 gross or they live abroad.)

With any claim for financial provision, the starting point is to understand what each person’s financial position is (including any interest in the property). This is known as “financial disclosure”. Once financial disclosure has been exchanged we can then assess what types, and the level of financial provision that may be secured under Schedule 1. If the parents co-operate this can be resolved by agreement without a formal application to the Court.

Married Couples

If a married couple separate then any financial provision for the children is dealt with as part of the overall financial settlement between the parents.

The governing statute is The Matrimonial Causes Act 1973 (MCA 73) which enables the Court to make all the orders it could make under “sch” 1 but the orders made can be more generous because the Court has wider discretionary powers under the MCA 73. For example, maintenance can be ordered even where the CMS has not made a maximum assessment and generally any equity in property is divided on a permanent basis and does not revert to the paying parent (albeit one person’s share in the property may be delayed and received at a date in the future).

In summary, financial provision between the parents themselves is more generous when the parties are married. However, “sch 1” ensures that the children of unmarried parents are protected from any lack of financial provision available to their parents.