Sarah Elliott, family law solicitor in Worthingtons Solicitors, with offices based in Belfast and Newtownards, discusses the issue of financial provision for the children of non-married couples in high income cases.
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 as 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 decided in each case.
The level of
maintenance payable is not always an easy question to answer, as demonstrated
in the reported case of TW and TM (Minor) [2015] EWHC 3056 (Fam) in which
a well-paid footballer was ordered to pay 31.5% of his annual income, or
£60,000 in child maintenance p.a. to the children’s mother. The Judge remarked that
the 32 year old 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% 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., totalling 15.75% 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.
If you
require any advice or assistance in respect of any family or matrimonial law
issue, please do not hesitate to contact a member of our experienced team on
028 91811538/ 028 90434015 to discuss your issue in confidence or email [email protected]
028 9181 1538 