When couples separate, they not only have to deal with the emotional distress but may also face having to find fresh accommodation and a means to support themselves. Where there are children of the relationship the need is more urgent to provide for basic essentials such as housing, warmth, food and clothing. Legal remedies are available to married couples with children who are divorcing. Unmarried couples who are separating with children cannot access the same remedies.
Consider, also, the sea change currently taking place with regard to the Welfare Benefit system in this country and hence the long-term uncertainty of entitlement to assistance. What is an unmarried parent entitled to for their child ?
The legal position of an unmarried parent is set out under Section 15 and Schedule 1 to The Children Act 1989 which is the subject of this discussion, although property claims may also be possible under the Trusts of Land and Appointment of Trustees Act 1996.
What are the Orders that can be made.
The first thing to note is that all orders made are for the benefit of the child.
1. Periodical Payments ie. Maintenance – but these can only be applied for where the CSA has no jurisdiction. For example:-
- If a maximum assessment has been made under the Child Support Act 1991
- The claim is for educational or disability costs
- The other party lives abroad
2. Lump sum payments – these are to meet essential capital expenditure for a child. For example, this may be to meet the costs of pregnancy and an impending birth and provision for the infant needs for care and equipment following birth.
3. Settlement of Property, on trust, for the benefit of the child.
4. Transfer of property for the benefit of a child
5. School fees orders
In relation to property orders, the interpretation of Schedule 1 is that, because any transfer is for the benefit of a child, once the child is grown up, in the majority of cases the property reverts to the provider.
Clearly, it can be seen that for these orders to be made, the parent against whom the application is made must have sufficient means to satisfy any order made. Applications of this kind are often made by a parent who is struggling to meet the needs of the children while the other parent is leading a comparatively lavish lifestyle. In the interests of fairness and equality, the children of a well- off parent ought to be able to enjoy the sort of lifestyle which they would have enjoyed had their parent’s relationship not broken down. So, what does the court have to consider ?
Paragraph 4 of Schedule 1 Children Act 1989 – sets out the factors which the court has to take into account.
i. The income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future.
ii. The financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future.
iii. The financial needs of the child
iv. The income, earning capacity(if any), property and other financial resources of the children
v. Any physical or mental disability of the child.
vi. The manner in which the child has been or is expected to be educated or trained
The court will however look at all the circumstances of the case including standard of living.
The court can include the applicants legal costs in any award made under Schedule .
Who can apply ?
Various people can make the application, including:-
- A parent of the child.
- A step-parent of the child.
- A Guardian of the child.
- Anyone who has a Residence order in respect of the child.
- Any child aged 18 or over where they are undergoing training for a trade or profession or are in education or where there are special circumstances and their parents are separated.
Normally, applications are made on behalf of children aged under 18 years.
So, if you’re struggling to make ends meet while your ex-partner and father of your children is clearly not, and/or if you have any questions concerning this article or require advice please contact the family department at any of our four offices.
