Sarah Elliott: Courts may rule on payments in family break-ups
Family lawyer Sarah Elliott of Worthingtons Solicitors examines the law when unmarried families break up.
With Boris Johnson and his partner, Carrie Symonds becoming the first unmarried couple to enter 10 Downing Street, this reflects a growing trend, with cohabiting families becoming the fastest growing family type in the UK.
But what are the implications when a non-married couple’s relationship breaks down? How do the finances get resolved, especially when there are children involved?
This can give rise to difficulty for claimants especially where they are unable to establish property rights. The legal position can come as a surprise, as the concept of ‘common law marriage’ is a myth with no current basis in law.
Where children are involved, maintenance will be payable by any parent with an income to the resident parent on their child’s behalf. The Child Maintenance Service (formerly the CSA) is a government agency which has been set up to calculate what level of maintenance should be paid by one parent to another.
However, should the non-resident parent earn more than £3,000 per week (figures correct at January 2020), an application can be made to the Court for what is known as a Schedule 1 Maintenance Order under The Child Support (Northern Ireland) Order 1991.
In high income cases, in determining a claim for a ‘top up’ of maintenance, the Court can consider the other parent’s resources, assets and income and has discretion to determine the appropriate award for maintenance.
The level of maintenance payable is not always an easy question to answer, as demonstrated in the reported case of TW and TM (Minor)  EWHC 3056 (Fam) in which a well-paid footballer was ordered to pay 31.5 per cent of his annual income, or £60,000, in child maintenance p.a. to the children’s mother.
The Judge remarked that the footballer, with a reported £190,000 salary, had put his ‘own expenditure and enjoyment first and his obligation to his children came a very poor second’. The father appealed on the basis that the 31.5 per cent award far exceeded the allowance in lower income cases by the CMS. When the matter was referred back to the court for a fresh hearing on appeal, the figure was reduced to £30,000 p.a., 15.75 per cent of the footballer’s income.
Under current legislation, resident parents can also make a separate claim to meet their child’s housing, educational or other essential needs, where the capital resources available would justify such a claim. In one such case of DE v AB (2011) EWHC 3792 (fam), an award of £250,000 was made against a father with significant assets to provide a housing fund for his son, along with a £40,000 payment awarded to clear the mother’s debts.
Under Schedule 1 applications, the Court may grant an award, should they deem fit, via a lump sum payment, periodical payment, or the transfer or settlement of property. Such applications can be useful for unmarried parents who were financially reliant on their partner, to seek some appropriate provision to meet their child(ren)’s needs.