Generally, when marriages break down, both parties have some protection in respect of the assets whether they are owned jointly or solely owned by one spouse. However, this is not the case for unmarried couples and often they can find themselves with no legal protection in respect of assets held in the sole name of one partner.
In a modern world where living together and unmarried families are more common, it can be difficult to know what your options are when a relationship breaks down, especially when there are children involved and limited assets.
Schedule 1 of the Children Act 1989 allows for unmarried parents to make an application to the court for financial provision in respect of a child under the age of 18 as they have a duty to be housed and provided for. Applications of this nature can be particularly helpful when one parent earns less than the other, or if they cannot afford to leave the family home and house themselves and the child(ren) elsewhere.
What is an order for financial provision under Schedule 1 of the Children Act 1989?
Financial provision for a child is considered a financial remedy. An application of this nature allows the court to make orders in respect of the following:-
- Periodical payments / secured periodical payments
- Payment of lump sums
- Transfer and ownership of property
Who can apply for an order for financial provision?
If you are thinking about making an order for financial provision, you must either be a parent or guardian of the child concerned. Additionally, special guardians and anyone named on a child arrangements order as a person who the child lives with can apply under Schedule 1.
Considerations of the court
When considering whether to make an order for financial provision, the courts must take into account all the circumstances of the case. The particular issues the court will look at are called statutory and extra-statutory factors.
Statutory factors
- In respect of natural or adopted children, all of the circumstances include the following:-
- The income, earning capacity, property and other financial resources which any parent of the child has or is likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities which any parent of the child has or is likely to have in the foreseeable future.
- The financial needs of the child.
- The income, earning capacity (if any), property and other financial resources of the child.
- Any physical or mental disability of the child.
- The way the child was being, or was expected to be, educated or trained.
In respect of stepchildren, the courts will consider the above circumstances in addition to the below:-
- Whether a person who is not the mother or father of the child had assumed responsibility for the maintenance of the child, and if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility.
- Whether a person who is not the mother or father of the child assumed responsibility for the maintenance of the child knowing that the child was not his child.
- The liability of any other person to maintain the child.
Extra statutory factors
In addition to the statutory factors noted above, recent cases suggest that the courts will also consider other factors, such as (but not limited to) the welfare of the child, the standard of living enjoyed by the family and whether that impacts upon the child’s needs, and the other children of the family.
Whilst it is unromantic to think about what could happen in the event that a relationship breaks down, it is sensible to have these discussions with a partner, particularly if you are thinking of buying property together and/or having children. It can often be the case that when the relationship has already broken down, it is more difficult to negotiate between yourselves as to an amicable way forward. A good way to avoid this is to enter into a cohabitation agreement which can deal with a variety of issues that can cover the obligations and responsibilities whilst the parties live together and in the event the parties separate, and would avoid the need for any costly litigation.
If you require assistance following the breakdown of a relationship, or you are thinking you may benefit from entering into a cohabitation agreement and are unsure what steps to take next, then call us on 0151 236 8871 or email info@morecrofts.co.uk.