Financial provision for children of a ‘common law’ marriage

29 March, 2018

The latest research from the Office of National Statistics tells us that cohabiting couples were the fastest growing family type between 1996 and 2016, increasing from 1.5 million families to 3.3 million families, out of 19 million families in total. 


Despite cohabiting couples comprising less than 20% of couples with dependent children, they make up nearly half of all family breakdowns, a concerning statistic given that the rights of cohabiting couples on separation are so vastly different from the rights of married couples on divorce.


Contrary to popular belief, there is no such thing as common law marriage.  Even though you live with your partner for years, and have children together, you do not have the same rights as married couples to ongoing maintenance, somewhere to live and pension provision for you and your children. This is naturally a worrying prospect, particularly where there are children involved, and parents are often shocked to find that their only entitlement on separation is to child maintenance.


Resolution, the national organisation of family lawyers, has called for the introduction of rights for cohabiting couples when they separate. Proposals include the provision of maintenance for a limited time, and other rights similar to those which married couples are entitled to on divorce.  Specific provision would be made for children to ensure their needs are met.


While we await government reforms in this area, what are the options in the meantime?


Underused legislation in Schedule 1 of the Children Act 1989 can assist parents in meeting the needs of their children. Under Schedule 1, the court can make a number of orders:


1. Maintenance over and above that assessed by the Child Maintenance Service (CMS).

The maximum CMS assessment is based on an annual gross salary of £156,000.  This acts as a cap on CMS maintenance, even if the paying parent earns far more than £156,000.  The court can, however, order that this be ‘topped up’ to take account of the additional income that the parent has available to them.


2. Maintenance for ongoing educational expenses

This includes nursery and school fees and expenses related to education, or costs attributable to a disability such as additional help, running an adapted car or respite care


3. Lump sum orders

The court can make any number of lump sum orders while a child is under 18.  These can be for expenses incurred with the birth of a child or maintaining a child, such as clothing and baby equipment, a family car, furnishings for a new home, etc.  A parent can apply for lump sums as many times as is needed until the child reaches 18.


4. Provision of a property

A property can either be transferred from one parent to the other, or be purchased by one parent for the occupation of the other and the children. Unlike lump sum orders, the court can only make an award of property in respect of the same child once.


It is important to be aware that claims under Schedule 1 must be for the benefit of the child, not the parent. This means that, for example, it is highly likely that if an order is made providing for one parent to transfer a property to the other, or buy a property for the other, to enable the children to be housed appropriately, once the children are 18 the property will revert back to the parent who provided it initially. 


Whilst we would always encourage parties to try an alternative method of dispute resolution, such as mediation or arbitration, in order to avoid potentially lengthy and acrimonious court proceedings, often there is no option but to issue a claim at court.  It is possible to include a claim for your legal costs in the application, if that is a concern for you, and so lack of funding should not be a deterrent when considering how best to provide for your children.


If you would like discuss any of the themes raised in this article, please contact Claire Tollefson on 01892 506191.