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In 2021, the Office of National Statistics found that 51.3% of babies were born to unmarried couples or those not in civil partnerships. Whilst historically it has not always been the case, it is completely normal for couples to choose not to marry before or after having children.
Unfortunately, relationships don’t last forever. If unmarried couples do split up, they do not receive the same protection as married couples. When involving children and finances, this can become particularly worrisome.
In this article, I’ll be looking at unmarried couples’ rights and what you’re entitled to if the relationship breaks down. If you’re concerned about relationship and want to know where you stand, call us directly on 0203 007 5500 or email [email protected]
A brief overview on marital assets.
When considering unmarried couples’ rights, we should first look at the opposite: the rights of married couples.
When married, all assets that couples own will fall under the ‘marital asset’ category. This includes anything that the couple built up from the date of cohabitation until separation.
A divorce will equally divide all marital assets between the two parties. The matrimonial home is normally considered a marital asset, so both parties will receive an equal split. This is the case even if one party owned the house before the marriage. In a small minority of cases, an equal division of matrimonial assets may not be appropriate. This can occur because of:
- The marriage being short
- No children
- Dual incomes
- Short finances
If an equal division of marital assets provides for each party’s capital, income needs and any children, then this is the appropriate financial outcome. Alternatively, if an equal division cannot meet the needs of the parties, an unequal division may instead be appropriate.
Moreover, this distribution can change if the divorce involves children. The parties can agree to or ask the court to order periodical or secured periodical payment for the benefit of the children.
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How do unmarried couples’ rights differ?
Matters become trickier when looking at unmarried couples’ rights. This is because there is no rule to provide for the other partner. However, this is where Schedule 1 of the Children Act 1989 (“Schedule 1 CA 1989”) becomes applicable.
Under Schedule 1 CA 1989, the definition of a parent includes:
- Biological parents
- Parents by operation of law (i.e. adoption)
- Any party to a marriage or civil partnership (including step-parents)
A parent (the applicant) can apply to the Family Court for financial orders to assist them in caring for their child.
The orders available to parties are lump sum, property, periodical payments and secured periodical payments.
Types of orders.
1. Lump sum
The court can make an order for one party of an unmarried couple to make a lump sum payment to the other. This is to compensate any costs incurred in connection with the birth of the child or maintenance of the child.
It also includes any other costs reasonably incurred by the child before the making of the order. You cannot use the order to meet the ordinary costs of day to day living.
The court has a wide discretion in deciding the amount and purpose of the lump sum. However, it’s also mindful not to make a lump sum that would cause a party to pay double.
Here’s an example: a lump sum payment that aims to account for child maintenance, but the parent pays this anyway.
2. Property
The court can order the transfer or settlement of property to one of the following:
- A parent caring for the child for the benefit of the child, or;
- The child themself.
This also includes property held in joint names.
Moreover, this does not mean that the court will register the property in the name of a child. Instead, the court holds the property until the child reaches the age of 18 or finishes full-time education.
For unmarried couples, the court can order that one party pays periodical payments to help support the child. The party can make these either to the parent or to the child. Unlike periodical payments after divorce, these payments are only made to assist the child.
These payments should not go beyond a child’s 17th birthday. This is the case unless proven that payments should continue until the child:
- Turns 18 years of age
- Finishes full-time education
- Has a disability which means it is necessary for the court to order payments for longer.
Secured periodical payments are similar to periodical payments. However, they are instead secured via a capital deposit.
These payments can go to the parent or the child directly. Once again, the child should be the sole benefit of these payments and they should not go beyond a child’s 17th birthday.
In some special circumstances, payment can extend beyond this date (e.g. the child has a disability that requires payments for longer.)
Want to know your rights as an unmarried couple?
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How does the court assess unmarried couples’ rights?
In comparison to the financial provision in divorce and dissolution proceedings, the court will have regard to all the circumstances when granting an order under Schedule 1 CA 1989 for unmarried couples. Factors the court will consider are:
- The income, earning capacity, property and other financial resources of each parent now and in the future
- Financial needs and obligations of the parties and children
- Whether the child has any disabilities
- The lifestyle that the child enjoyed before separation (e.g. education needs)
In addition, there are special provisions for stepparents. The court will assess whether:
- They assumed responsibility for the maintenance of the child
- They knew that the child was not theirs
- Anyone else had a responsibility to maintain the child
Schedule 1 applications and orders for sale.
For unmarried couples that own a property, a party can make an application to the court for an order for sale. To do this, an applicant or respondent can bring forth a Schedule 1 CA 1989 application. The court will then consider the impact that an order for sale would have on any relevant child.
We’ll be cover Orders for sale, Trusts of Land and Appointment of Trustees Act claims (“TOLATA”) and Schedule 1 CA 1989 proceedings in later articles in this series.
How can Britton and Time Solicitors help?
As unmarried couples do not have the same rights as those in marriage, Schedule 1 of the Children Act 1989 can help. It allows a party to apply to the court for financial orders that they would not be entitled to under divorce or dissolution proceedings.
It is always advisable for parties to try to reach an agreement before issuing proceedings. Moreover, you should take legal advice before making an application to court.
Britton & Time Solicitors can assist you in negotiations or an application to court. Allow us to alleviate the stress and ensure your application is correct by calling us on 0203 007 5500 or sending an email to [email protected]
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