Support for children of unmarried parents
More parents now live together outside marriage than those who have been through a wedding ceremony. That, sadly, does not mean that the relationships between unmarried partners are more secure or less likely to break down. There are, however, important legal differences in the support which one partner can seek from the other if such a relationship fails. This article looks only at one aspect, namely the financial position of children in this situation.
Differences in legal options available to married and unmarried parents
When a marriage breaks down, each of the partners has a range of options which can be utilised to secure a fair rearrangement of the finances of the parties to deal with the new situation, including support for the children.
If the parties are not married, the options available to the newly separated partners are very limited. However, the law provides very useful powers in relation to the children of the relationship. Under the Children Act, once the parties are separated, either parent can make an application seeking from the other finance to help with support and care of the children.
Try to reach an agreement first
As we have emphasised in many of our previous articles there has been a sea change in recent times in the procedures for dealing with all family situations which might have to come to the Family Court.
The law now requires the parties to try to reach an agreement between themselves to resolve disputes, rather than immediately going to court and asking a judge to impose a solution. In fact, when a case comes to court, the judge is obliged by the law to see what steps have been taken to reach an agreement. The judge may even adjourn the case for further discussions if it is felt that more could still be done.
The reason for this approach is simple. Parents remain parents even after separation and they each continue to have responsibilities towards the children. Society now takes the view that those joint and continuing parental responsibilities include making every effort to reach an agreement on how their children are to be looked after and the financial support which is to be provided by each party.
Emergency court orders
Of course, there are exceptions to the rule that out of court agreements should always be attempted. If the court is satisfied, for example, that one of the partners or the children are in real physical danger, or there is a risk of abduction of children or removal of financial resources, the court has the power to take action to secure the position before going on to explore it in more depth. These urgent cases should, however, be regarded as the exception to the general rule.
It is for this reason that we invariably advise clients to allow us to try to explore the possibility of an agreement before launching legal action. However, where there is real urgency, we will recommend to clients that an application should be made for an immediate court order, which, in legal terminology is usually called an “injunction”.
Applications for support for children
If it proves impossible for parents to reach agreement relating to financial arrangements for the support of children, then one of them (usually the parent who has the main caring responsibilities) can take one or both of two steps:-
- make an application to the Child Maintenance Service (previously called the Child Support Agency) for regular child support (maintenance) and/or
- make an application to the court under the Children Act to the Family Court for financial support.
Child Maintenance Service (CMS)
This is a government agency which deals only with maintenance payments. Details can be found on their website.
The CMS will only deal with and manage claims for regular payments of child support (maintenance). All other applications have to be made via court under the Children Act.
Applications under the Children Act
The CMS will not deal with larger, usually one off, lump sum payments. Such payments would include those needed for accommodation costs, top up maintenance (in addition to CMS maintenance), the costs of out of school activities, school fees and the like.
Who can apply and against whom?
An application for financial support under the Children Act can be made by:-
- anyone who is a parent, guardian or special guardian of a child or by any person in whose favour a child arrangements order (formerly a residence order) is in force or
- a child who is over 18, where the child is or will be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation or there are special circumstances justifying an order (although no such application can be made if there was already a court order in place before the child became 16).
- The application must be made against a parent of a child. “Parent” for this purpose includes a party to a marriage or civil partnership whether or not the marriage or civil partnership still exists, where the child concerned is a child of the family (which means a stepchild as well as a natural child).
What orders can the court make?
The range or orders that the court can make when deciding such an application is complicated. In general terms, the orders can be for
Such an order is usually required:-
- as a “top up” to payments made to the CMS or
- where the person required to make the payments lives abroad
- where the children are over 18
- Lump sum(s)
These orders usually relate to expenses that will be incurred by the parent with primary care of the child(ren) such as for accommodation, one off care items (for example, immediately after the birth of a child), school uniform, holidays (with the school or the family), IT equipment, driving lessons, additional tuition, school fees and the like.
Payments must be for the benefit of a child
The golden rule is that the expense must relate to the child(ren) rather than the parent. Obviously, there are some expenses which will benefit (in the broadest sense) not only the child(ren) but also the parent. These will include most particularly accommodation costs. For that reason, court orders will sometimes require that the money provided (for example, for the purchase of a house) will be used for the stated purpose whilst the child(ren) is/are undergoing education or training but then has to be returned to the paying parent. This can place the parent with care in difficulty, sometimes many years later, but with careful negotiation, that situation can be avoided.
Take early advice
As can be seen, the law in this area is complicated. Cases can have legal and practical difficulties and are usually sensitive. It is important that early advice is taken so that the best approach can be adopted.
For more information or some preliminary, confidential advice, please contact Rachael Shearmur, solicitor in the Family Team, by telephone +44 (0)1392 687634 or by email firstname.lastname@example.org