Many parents choose not to marry but if the relationship breaks down, they often find themselves surprised at their lack of financial rights in comparison to couples who are married despite still living together in the same property.

If a couple is unmarried and they go on to separate, the legal position that applies is very different to that of a couple who are married. This is due to cohabitees not having the same right or claims over each other as married couples do.

So, what financial rights are available to unmarried couples with children?

Unmarried couples with children who separate have three potential options to explore.

These include:

1. Child maintenance
2. Financial provision under the Children Act 1989
3. Property claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)

Child maintenance

Child maintenance is an arrangement that’s agreed and set up between the two parents and is usually paid by the parent that the child doesn’t live with until the child reaches 16 or 20 if they attend further education. This child maintenance payment is intended as a contribution towards the day to day living costs of the child, such as household expenses, food, clothing etc.

In many cases the parents come to an agreement themselves with regards to how much should be paid and when, often with calculations made using the Child Maintenance Service Calculator.

If parents are unable to reach an amicable agreement, they may apply to the Child Maintenance Service directly and they will reach a decision.

How is child maintenance calculated?

Many variables and factors are considered to calculate how much child maintenance should be payable, including:

• The number of children
• The total income of the parent who will be liable to pay
• The amount of time the children spend with the paying parent
• Whether the paying parent is also responsible for child maintenance payments for other children

Read: Family law explained

Financial provision for children under the Children Act 1989

An unmarried parent can explore the opportunity to obtain financial assistance from the other parent through the court via Schedule 1 of the Children Act 1989.

The court could make an order for one parent to provide:

• Either one lump sum or periodical payments to cover certain expenses such as school fees
• A transfer of a property or for a property to be held in a trust for the benefit of a child until a certain event is triggered such as the child reaching a certain age or completing education, at which time the property would then be transferred back to the paying parent or sold with the proceeds being paid to the paying parent
• Regular child maintenance payments if the non-resident parent’s income is higher than the limit where the Child Maintenance Service deal with maintenance

When deciding what order to make the court will take the following into consideration:

• Financial circumstances of each parent both now and in the future
• Financial needs of the child
• Income, earning capacity, property and other financial resources of the child
• Physical or mental disabilities of the child
• Education for the child

TOLATA

If one or both parents own a property, a claim may be possible under existing property law. It could involve a property that is jointly owned that can be divided between each parent, or that one is able to place a claim under trust principles against a property that is owned by the one parent.

As an example, this could include a situation that saw the non-owning parent contributing financially to the property or where the one parent has promised the other a share in a property, but it has remained in their sole name. These types of claims are naturally very complex and are governed by property law legal principles, rather than standard family law concepts of “fairness” or “sharing” which applies to cases that involve divorce from a marriage.

If you need legal assistance with your situation following a relationship or marriage breakdown with children involved, don’t hesitate to contact our team of family law experts here at Fonseca Law in Ebbw Vale. You can contact us by calling 01495 303124, e-mailing enquiries@fonsecalaw.co.uk or by completing our online contact form.