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Divorce law blog

The kids are alright – financial support for separated unmarried couples

07/04/2017   By: Marc Saunderson

"We’ve lived together as common-law spouses, will my ex have to support me financially now that we’re separating?”

There is a common misconception that couples who live together for a number of years obtain the same rights on separation as those who are married. In our survey, 26 per cent of those asked believed that unmarried couples who had been living together for more than a year had the same legal rights as married couples. For those cohabiting families that did have dependent children, the survey revealed that almost three-quarters of respondents (73 per cent) did not know what kind of support they would be entitled to for their children if they separated from their partner.

In fact, the law treats a cohabiting couple as two separate individuals: there is no such thing as a “common-law marriage”.

Whereas a divorcing spouse can apply to court for an order for spousal maintenance, there is no such option available to a separating cohabitant. Regardless of the length of their relationship or the standard of living they have become accustomed to, the only financial claim a co-habitant has against their ex-partner personally (as opposed to any property claims they may have) is in their role as parent to any children the couple have. No children, no claim.

The financial provision for children of separating unmarried couples is governed by a combination of the Child Maintenance Service (CMS) (previously the Child Support Agency) provisions and Schedule 1 of the Children Act 1989.

Unless the children split their time equally between each parent , then the parent who has the children for the least amount of time will be expected to pay regular weekly or monthly child maintenance to the other parent. There is a set formula for working out how much child support is payable. You can find a handy calculator here. If the payer’s gross income (before tax but after deduction of pension contributions) is more than £156,000 a year, then the courts have the power to make additional child maintenance orders to “top up” the amount that would be assessed by the CMS.

In addition, the parent who lives with the children can ask the court to order the other parent to:

  • provide housing for the benefit of the children; or
  • pay for school fees or other educational expenses; or
  • pay expenses associated with a child’s disability; or
  • provide a fund of money to pay for specific items the children need.

There is no financial limit on the order that the court can make. However, the court can only make one order for housing. It is important to remember that the house must be for the benefit of the child so ordinarily if a house is bought for the child and mother to live in, once the child finishes their full-time education the property would be sold and the funds returned to the parent who provided the funds or the property.

It is also important to remember that an application to court might not always be necessary. Mediation can be really effective for working out financial arrangements for a separating cohabiting couple and their children, as can collaborative law or arbitration. Take a look at our resources on dispute resolution to find out more.

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