Financial provision for children of unmarried parents

When unmarried parents separate, it may be possible to pursue financial claims on behalf of children. Financial provision for children of unmarried parents follows a different legal framework to that which applies divorcing couples and the rules which govern these claims can be quite complex in practice. 

How financial provision works for children of unmarried parents 

There are two potential routes to claim financial provision: 

• The Child Maintenance Service (“CMS”), which is the starting point for child maintenance in the majority of cases; and/or 
• Claims brought through the Family Court under Schedule 1 of the Children Act 1989 (“Schedule 1”) which covers child maintenance in situations where the CMS cannot carry out the assessment and additional claims for lump sums, housing provision and education costs. 

What types of financial provision may be considered

The CMS adopts a standard formula for working out how much child maintenance is payable with reference to payer’s gross income (after deduction of pension contributions) up to a maximum sum of £156,000 per year. Their initial assessment will be based on the information provided to HMRC for the most recently available full tax year and takes into account the extent to which care is shared between the parents and any other children living with the paying parent. The initial assessment can potentially be varied to take into account additional income which is not automatically considered and/or certain special expenses.   

Claims under Schedule 1 cover top-up maintenance for cases in which the paying parent has relevant income of more than £156,000 once the CMS has carried out a maximum assessment. As noted above, they can also include claims for lump sums for specified purposes, education costs and a housing fund.  

Housing provision can be made as an outright payment if agreed. However, in the majority of cases it will be a fund settled on trust to enable the receiving parent to provide a home for the children until certain trigger events (e.g. the children reach a specified age or complete their education up to a specified point) after which the fund reverts to the paying parent. This differs from the claims which can be made on divorce or the dissolution of a civil partnership, because the claims are being made on behalf of the children for so long as they remain minors or in full time education. 

Why early clarity can help 

The financial claims you can make on behalf of your children are different from the wider claims which could be pursued if you have been married or in a civil partnership with the other parent. Under English law, there is no such thing as common law marriage, which is a common misconception. This means that, if you have not been married or in a civil partnership you cannot pursue claims for yourself against your ex and you can only make claims for financial provision for children.  

The process for claiming financial provision for children is not always straightforward, because of the need to pursue claims through the CMS and the Family Court. It is therefore key to ensure that you understand how the two systems work and to clarify what you may be entitled to claim, or how much you may have to pay, depending on your individual circumstances.  

The CMS and the Family Court each provide a way to determine the appropriate level of financial provision and they can both help to resolve matters if an agreement cannot be reached. However, it is always better to avoid a contested process if at all possible.  

Understanding how the law works in this area can help you to make an informed decision about the appropriate level of provision. It can also help you to reach agreement with your ex in practice. If you need advice or support with financial provision for your children, please contact our family law team for expert guidance. 

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