When an unmarried couple with a child or children split up, they do not benefit from the same legal rights and protections as married couples or those in a civil partnership.
Contrary to popular belief, there is no such thing as a “common law marriage,” a myth that leads many to assume they have legal rights equivalent to married couples if they have lived together for a significant period or have children.
The law, however, treats unmarried and married couples differently, particularly in terms of property rights and financial responsibilities.
Financial Rights Under the Children Act 1989
In England and Wales, unmarried parents can seek financial support for their child through Schedule One of the Children Act 1989. This provision enables a parent, typically the primary caregiver, to request financial assistance from the non-resident parent. Here’s a breakdown of what can be claimed:
Housing Provision: A parent can seek a property transfer or a trust arrangement to ensure the child has a suitable home. This arrangement typically lasts until the child reaches 18 or finishes education.
Periodical Payments: If the Child Maintenance Service (CMS) cannot adequately address the child’s needs—especially if the non-resident parent is a high earner or lives abroad—the court may order additional, regular payments.
Lump Sum Payments: The court can order one-time payments for specific needs, such as school fees, medical costs, or equipment.
Legal Costs: In some cases, a parent can request financial support to cover legal fees, though each situation is unique.
Rarely applied : The main problem however is that the payer needs to be earning more than £156,000 per annum meaning it is rarely applied / used in the majority of cases.
Property Rights for Unmarried Couples
If you and your partner bought a property together, the situation becomes more complex. Unlike married couples, who can divide assets on divorce, unmarried couples may need to rely on the Trusts of Land and Appointment of Trustees Act 1996.
If one partner owns the home but the other has made financial contributions, they may be able to claim a “beneficial interest,” proving that they have a right to a share of the property. This might involve demonstrating payments towards the mortgage or funding home improvements. Promises made may also be relevant but these are often evidentially challenging.
Parental Rights and Responsibilities
For unmarried parents, Mothers automatically have parental responsibility. Fathers, on the other hand, must meet specific criteria to gain parental responsibility. This can be established if:
- The Father is named on the Child’s birth certificate (for births registered after 2003).
- The Parents sign a Parental Responsibility Agreement.
- The Father obtains a Parental Responsibility Order or a Live With Order from the court.
Parental responsibility grants a parent the right to make crucial decisions for their child, from education to medical care.
If disputes arise over child arrangements, parents can apply for a Child Arrangements Order. The court’s primary focus is the child’s welfare, typically aiming to maintain relationships with both parents unless there is a compelling reason not to.
Maintenance and Financial Support
While unmarried couples have no financial obligations toward each other post-separation, both parents remain responsible for their child’s financial well-being.
The Child Maintenance Service (CMS) calculates standard maintenance payments, but this can be inadequate for families accustomed to a certain standard of living or with special needs, such as private schooling or medical care.
In these cases, the court can order “top-up” payments or lump sums for specific child-related expenses.
Practical Steps for Unmarried Parents Facing Separation
Attempt Non-Court Dispute Resolution: Before heading to court, consider mediation or collaborative discussions to settle matters amicably. This approach can often save time, money, and emotional distress.
Document Financial Contributions: If you contributed to the home or other shared assets, gather evidence like receipts, bank statements, or contracts.
Seek Legal Advice: A solicitor specialising in cohabitee disputes can clarify your rights, help you understand the nuances of your case, and guide you through the court process if necessary.
Focus on the Child’s Welfare: Always prioritise what is best for your child, and strive to create a parenting plan that meets their needs while allowing both parents to stay actively involved.
Separation Agreement : It is usually sensible to enter into an agreement that is binding upon both parties called a Separation Agreement or a Deed of Separation.
How We Can Help
Navigating the breakup of an unmarried relationship is challenging, but you don’t have to go through it alone.
Our experienced Family Law Solicitors understand the intricacies of such cases. Please contact us for a free no obligation discussion as to how we may be able to assist you.
Remember, the end of a relationship doesn’t have to be the end of cooperative and meaningful parenting. Prioritising open communication, understanding your rights, and seeking professional guidance can help make the transition as smooth as possible for both you and your child.
