There has been much press-coverage on the government’s failure to address the vastly inferior rights of unmarried couples on separation compared to those of divorcing couples. The myth of the “common law wife” is now more widely understood: in reality cohabitees have very limited claims on separation, regardless of the length of their relationship and the extent to which they relied on their former partner for financial support.
However, the law does not leave unmarried parents completely high and dry as there is a separate body of law (Schedule 1 of the Children Act 1989) dealing with financial claims for the benefit of children. With more and more couples having children without getting married this is becoming all the more important. However, very few parents are aware these rights exist.
Schedule 1 enables parents (or anyone with a residence order in force) to claim from the other parent provision of a home, lump sums to cover costs anticipated for the care of the child(ren), including school fees. Child support can also be fixed if the couple can agree the appropriate amount (otherwise it has to be dealt with through the Child Support Agency).
The resources of both parents will be assessed before appropriate financial provision can be determined and the extent of the provision that would be agreed or set by the court will depend on the other parent’s (usually the father’s) ability to pay.
As the provision must be for the benefit of the child(ren) rather than the parent who cares for them, any home provided will revert to the father’s ownership, usually when the children complete education. Apart from that, lump sums can be provided for the purchase of items which benefit the mother as well as the child(ren), such as a car, furnishing costs for their home, repayment of debts associated with costs incurred following the birth of a baby and even to fund the mother’s legal fees (which will ultimately benefit the child by allowing the mother to secure appropriate provision).
The ability of the court to order provision of a property for the benefit of a child is limited to one such order in respect of the same child(ren). It is therefore important to take the right advice to ensure that an adequate home is sought on the first occasion. Subject to the father’s ability to fund it, this can mean a home suitable for housing the father’s child as well as any half-siblings which are not his natural children, as it will be deemed in the child’s best interests to live with his/her siblings.
Our family law team advises families across the South West on the best solutions for them. If you would like to get in touch with the team to discuss your rights as unmarried parents by telephone 0345 450 5558 or email enquiries@stephens-scown.co.uk.