Cohabitation – the kids are alright

Cohabitees have limited financial claims against each other on the breakdown of their relationship. However, where there are children involved, the position is very different

Child maintenance

The starting point is child maintenance. A parent who does not live with a child is obliged to pay child maintenance to the other parent to help towards that child’s living costs. The amount payable is based on a standard formula which takes into account various aspects such as the payer’s income and the amount of overnight stays the child has with the payer.

Parents are encouraged to agree child maintenance between themselves, but where this is not possible, a parent can often make a claim to the Child Maintenance Service (CMS).

Schedule 1 applications

A parent who has day to day care of a child can make an application to the Court for financial provision for that child under Schedule 1 of the Children Act 1989. The Court’s powers include making orders for housing, education expenses, costs attributable to a disability and top-up maintenance orders where there is a maintenance calculation in place and where the respondent is a very high earner.

The Court’s approach

Both parents’ financial circumstances will be taken into account by the Court to include income, earning capacity, property and financial resources as well as financial needs, obligations and responsibilities both now and what they are likely to be in the foreseeable future. The Court’s focus will be on what a child needs while they are under the age of 18 and what is affordable.

Examples of Orders

Where the applicant does not have the financial resources to provide accommodation for a child and the respondent does, a Court is likely to expect the respondent to provide some funds towards the purchase of a property for a child to live in while a minor. Any money made available would be returned to the respondent when the child reaches the age of 18.

An applicant may also apply for a lump sum payment every few years to cover capital expenditure for depreciating items such as a computer for a teenager or a contribution towards a car used for a child. Where a respondent is very wealthy a Court is likely to order that he or she pays a child’s private school fees.

However if there are questions over affordability, Courts are more likely to prioritise payment of day-to-day maintenance and other basic child related expenditure above private school fees – considering this a luxury.

Although the Court’s concern will be limited to the child’s needs and welfare rather than the parent’s need, there can be times when payments for a child seem to benefit a parent as well - for example, new furniture when moving house.

It can be quite difficult to predict the award that a Court will make because much of the case law involves very wealthy parents and gives little guidance on how to approach matters for more every-day families. As a result Court proceedings can be uncertain and expensive, and it is better if parents can agree these issues directly.

Unfortunately there can be too much conflict between parents for this to be possible and in these circumstances mediation can be a useful tool to help parents come to an agreement. This involves a specially trained independent mediator helping the parents discuss issues, improve communication and agree on the best way forward. It is often a far cheaper and less stressful route than making an application to the Court.

Further details on the legal and financials issues for cohabiting couples can be found on our new website

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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