When a couple is unmarried, the parties have no claim against each other for ongoing maintenance (known as “spousal maintenance”) nor a claim for lump sums or property for themselves by virtue of their relationship (unlike if they were married). However, if the couple have children, a party’s obligation to financially maintain any children they have is inalienable. Therefore, beyond the rights arising through operation of property and trust law, all claims upon separation of an unmarried couple are, in effect, limited to claims on behalf of the children.
These claims fall into two main categories:
- Child Maintenance; and
- Other provision by way of lump sum(s) and housing provision, pursuant to Schedule 1 of the Children Act 1989.
Child Maintenance
Private Agreement
Should the parents be able to agree on the level and frequency of child maintenance, it can be recorded in a written agreement. This is often more suitable where the parents trust one another and are prepared to be honest about their financial circumstances. A private agreement, however, is not legally binding and therefore if either parent changes their mind, they will not be held to the terms of the agreement. If after signing the agreement, one party resiles from the agreement, it would be necessary to deal with child maintenance through the Child Maintenance Service or the courts.
Child Maintenance Service (“CMS”)
Where there is a dispute as to the level of child maintenance payable, in the first instance and in most circumstances, this is a matter for the CMS rather than the court. There is an online calculator which parents can use to calculate the level of child maintenance they may receive.
The CMS formula is based on a percentage of the paying parent’s income and takes into account the number of overnights that the children stay with the paying parent, whether the paying parent is or will be paying maintenance to more than one parent, and whether the paying parent has other children living with them.
The CMS has primary jurisdiction for child maintenance, however, there are certain circumstances where you can apply to the court to determine the level of financial provision for children. These circumstances are set out in more detail below, however, the most common is where the paying parent’s gross income exceeds £156,000 per annum. In this case, you can apply to the court for a “Top-up” order, as the level of child maintenance provided by the CMS formula is likely to be too low.
Court Ordered Financial Provision under Schedule 1 of the Children Act 1989
Schedule 1 of the Children Act 1989 (“the Act”) is mainly used to provide capital sums and housing provision for the benefit of children of unmarried parents, however, it can also be used to award child maintenance when the parties fall outside the jurisdiction of the CMS.
Statutory regime in England and Wales
Under the Act, the Court has the power to make an order for:
- Top-up Orders: These are child maintenance payments to a party where the paying party’s earnings are above £156,000 gross per annum;
- Child maintenance payments where the CMS lacks jurisdiction, such as if the paying parent is habitually resident outside of England and Wales or payment is sought for a step-child;
- Payment of lump sums, including to meet capital expenses to benefit the children (e.g. a family car or home furnishings) or to meet legal costs;
- Purchase or transfer of property for the benefit of the child (e.g. if a father were to buy a property for the mother and children to live in, which will return to the father at the end of a specific term, such as when the child turns 18 or finishes university);
- Transfer of property to a child outright (or to a parent for the benefit of the child);
- Periodical payments and lump sums for children over the age of 18 necessary for education (including private school fees), training or in other specific circumstances such as disability; and/or
- Interim maintenance while legal proceedings are ongoing.
The Statutory Framework for Court Decisions
All of the above applications will be considered by the court, taking into account a number of factors set out in the Act. The factors include the following:
a) 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;
b) The financial needs, obligations and responsibilities which any parent of the child has or is likely to have in the foreseeable future;
c) The financial needs of the child;
d) The income, earning capacity (if any), property and other financial resources of the child;
e) Any physical or mental disability of the child; and
f) The manner in which the child was being, or was expected to be, educated or trained.
It is important to be aware that the length, nature and quality of the parents’ relationship is of little relevance to the court, as the child’s needs are the same regardless. In addition to the statutory framework, it has become clear from recent cases that there are other important elements that the court will consider when making financial orders for a child. This includes, amongst others, the welfare of the child, carer’s allowance and standard of living.
Carer’s allowance or HECSA
In Re P [2003], Lord Justice Thorpe endorsed the proposition that a child’s maintenance order could include funds comprising a carer’s allowance, usually for the primary/resident parent’s benefit. It has been more recently referred to in case law as a Household Expenditure Child Support Award (“HECSA”). This award would take into account the carer’s needs and is limited to any costs necessary to discharge the carer’s duties. It is not equivalent to spousal maintenance and the court is clear that does not extend to “unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child” (J v C [1999]).
In the recent case of Y v Z [2024], in which Payne Hicks Beach acted for the father, the court found that the mother’s case “from the outset was overstated”, particularly as she claimed an unreasonable figure by way of HECSA. Mr Justice Peel identified many elements of the mother’s budget as “excessive” and said that $64,000 per annum for clothing for the mother “cross[ed] the line between a reasonable figure for M qua carer and an unreasonable figure for herself”. It is therefore clear that any HECSA claims must be limited to costs that are linked to and support the parent’s role as carer, not costs that relate to that parent’s lifestyle, as the latter could only be claimed if the parents were married (by way of spousal maintenance).
Standard of living
The standard of living enjoyed by the parties during their relationship is not a statutory criterion, but case law has established that a child is entitled to be brought up in circumstances that bear some sort of relation to the non-resident parent’s accommodation. Furthermore, the lifestyle which the child had become accustomed to could impact on the child’s needs.
The primary carer cannot unreasonably increase or project the level of maintenance claimed, such that it is excessive or aspirational and therefore does not fall within the children’s reasonable needs. However, if the other parent does have a high standard of living, this is a relevant factor to be taken into account.
In cases where the parties are “somewhere on the spectrum from affluent to fabulously rich” the guidance in Re P [2003] is as follows:
- Determine the nature of the housing need: value, size and location all bear upon the “reasonable capital cost of furnishing and equipping it as well as upon future income needs”;
- Determine the lump sum required for furnishing and equipping the home, the cost of a family car and so on; and
- Determine the level of maintenance generously, recognising the responsibility and often sacrifice of the primary carer, taking a broad-brush approach (“the court should discourage undue bickering over budgets”). It is often ordered that school fees be paid in addition to maintenance.
Conclusion
Each case turns upon its own factual matrix, but notwithstanding unmarried parents’ limited financial claims against each other, the law in England and Wales operates to ensure that the children’s needs are met through the provision of suitable housing and maintenance payments to assist the primary/resident parent.
