Lehna Hewitt, Trainee Solicitor
Email Lehna
Unmarried couples who separate do not have the same legal rights as married couples who are divorcing. However, a parent of a child has an absolute obligation to maintain that child, and Section 15 and Schedule 1 of the Children Act 1989 allows the court to order financial provision for a child. This can be a very useful tool for cohabiting couples, especially where the non-resident parent is wealthy.
Who can apply?
A parent, guardian, or anyone in whose favour a residence order has been granted is entitled to apply. The application is made against one or both of the child’s parents. A “parent” in this context means a natural parent or any party to a marriage/civil partnership for whom the child is or was a child of the family (e.g. a step-parent or civil partner).
The orders available
The court can make one or more of the following orders:
1. Maintenance - periodical payments and secured periodical payments
The applicant can usually only apply for maintenance for the child if a Child Support Agency calculation has been carried out and the respondent is paying the maximum amount possible. The practical effect of this is that a Schedule 1 application is usually only made when the respondent is wealthy.
However, a claim for maintenance may also be possible in other situations, namely in respect of school fees, if the child is disabled, or if the respondent is living abroad.
In the first instance any order for child maintenance will be made until the child reaches age 17, but there is scope for the court to extend this if the child is still in education or training.
2. Lump sums
The court can make an order for a lump sum for an unlimited amount. It must be for the benefit of the child e.g. clothes, furnishings, computer, car etc. “For the benefit of the child” has been widely interpreted. In Re S (Child: Financial Provision) 2005 2 FLR 94, the court awarded the applicant a fund to travel to Sudan to see her child and pursue legal proceedings there.
3. Settlement/transfer of property
The powers enable the court to make housing provision for a child. The court can settle property on trust for the benefit of the child, which allows the child and primary carer to occupy the property without paying rent and at the exclusion of the respondent. The order will normally only give the child a life interest in the property, and it will therefore revert to the provider on the child attaining age 18.
Matters to which the court must have regard
The factors which the court must consider when making an order include:
- The income, earning capacity, property and other financial resources of the parents;
- The parents' needs, obligations and responsibilities, including to any other child;
- The child’s financial needs;
- The manner in which the child was being or was expected to be educated or trained;
- Any physical or mental disability of the child.
The court will award a reasonable figure having regard to the father’s means and the child’s needs. The child’s needs include money for food, clothing, housing and so on, and also money for the general care of a young child. The fact that the applicant may have had to give up work to care for the child can also be considered.
Recent trends
The levels of housing provision in Schedule 1 cases seems to be increasing, and lump sum payments for legal fees have been held to be acceptable in principle. The standard of living and lifestyle of a rich father is also being considered; the extent to which the applicant and child are used to a particular standard of living could impact legitimately on an evaluation of the child’s needs.
Time for reform?
The law is still in many respects discriminatory towards unmarried couples. Schedule 1 is a complex piece of legislation which is limited in scope and effect. There is a strong argument for reform in this area to allow unmarried couples to have financial remedies commensurate with those of married couples. However, the recommendations made in the Law Commission’s 2007 paper Cohabitation: the Financial Consequences of Relationship Breakdown have been shelved by the current government and therefore little progress is being made in this area.
Lehna Hewitt is a Trainee Solicitor in Anthony Gold's family & divorce law department. For further information email Lehna or call 020 7940 4000.
