Not Married with Children: What Happens after Separation?

Wooden family figures standing outside a wooden house

According to the latest Office of National Statistics (ONS) data, released in 2017, cohabiting couple families were the fastest growing family type in the UK. Of the 3.3 million cohabiting couples, over 1.2 million of these include dependent children. Cohabitation — an arrangement whereby a couple lives together without being married — is becoming increasingly common, however, it’s a divorce myth that English law offers unmarried couples the same rights and claims as married couples after separation.

That being said, when there are children involved, the law does offer some protection.

The Children’s Act 1989

Under Schedule 1 of the Children’s Act 1989 (colloquially referred to as a “Schedule 1” claim), the court has the power to make arrangements that allow one parent to benefit from financial support from another to ensure that the housing needs of a child or children are met. When determining whether a parent should be awarded financial provision, the court will take into account a number of factors, including:

  • How much each parent currently earns
  • Each parent’s responsibilities — including those to any other children
  • The child’s financial requirements
  • Whether the child is disabled
  • The child’s education (either current or intended).

In this instance, both parents are required to fully disclose the details of the financial position to the court.

Schedule 1 Claims

A separating parent who will continue to be the main carer for a child can make a claim for child support — money to be provided for the day-to-day care of the child. This is calculated by the Child Maintenance Service. Aside from this (if the application is successful) and a voluntary childcare arrangement with your ex-partner, there is little else an unmarried parent can rely on to meet the financial needs of a child.

However, where the non-resident parent (i.e. the parent with whom the child does not live with most of the time — usually the father) earns over £3,000 gross per week (£156,000 per year), the resident parent can make a Schedule 1 claim for top-up maintenance. The court has the jurisdiction to make this amendment and awards can be very generous. A Schedule 1 claim is made under “Financial Provision for Children”.

What the Court Can Award in a Schedule 1 Claim

The main purpose of financial provision is to ensure that a child has a place to live. This grants the court the power to order that a child’s housing needs are met (including the purchase of a property or paying rent). When a property is purchased, this is usually on trust for the child’s minority and reverts back the non-resident/paying parent when the child is 18.

The court may also award enhanced periodical payments to meet the costs of a child’s disability or to go towards school fees.

Due to the many factors at play, Schedule 1 claims can be complex. The transfer of property can cause long-term implications and if a claim is unsuccessful, the parent may be required to pay their own legal costs and those of their ex-partner. This makes it vital to consult a specialist family law solicitor experienced in supporting unmarried parents with children, including making the claims and initiating the proceedings.

Contact our family law solicitors in Fitzrovia, London, today to speak to a qualified and experienced member of the team about cohabitation agreements and your case.

After four years working at a top-tier, award-winning family law firm in Hertfordshire, Che joined KMJ in January 2018. Prior to this, Che trained and qualified at a high-profile commercial and media firm based in London’s West-End.