Can you get spousal maintenance if you are not married?
If you have split up from a long-standing partner, the emotional consequences and the financial ramifications of creating two homes soon become apparent. The top London divorce solicitors will tell you that what most people do not realise is that the extent of any financial help is based upon the legal nature of your relationship, rather than your financial needs in light of the relationship breakdown.
In the UK, where nearly fifty percent of children are born outside marriage or civil partnership relationships, that means many children are financially affected by the legal status of their parent’s relationship when parents decide to separate. Sadly, when many parents get together to form a relationship, they do not understand the significance of their choice not to marry until they take legal advice from a top London divorce solicitor on relationship breakdown.
The law on unmarried relationships and financial provision for a former partner and child is a very complicated area of family law. However, the best London divorce solicitors advise that, unlike married couples, a partner whose cohabiting relationship breaks down is not entitled to apply for maintenance for himself or herself.
On relationship breakdown , a partner with children can use a piece of family law legislation called Section 15 and schedule 1 of the Children Act 1989 that enables the parent with day to day care of the child of an unmarried or married relationship the ability to apply to court for an order for:
- Maintenance; and
- Lump sum; and
- Transfer or settlement of property.
Although married couples are technically able to make an application to court under Section 15 and schedule 1 of the Children Act 1989, they rarely make an application under this statute, preferring to make a court application under the Matrimonial Causes Act 1973 if they need financial assistance. That is because the Matrimonial Causes Act is far more flexible and generous to spouses than the provisions under the Children Act 1989.
How can OTS Solicitors help?
For legal advice and help on unmarried property and cohabitee claims or information on the law on unmarried relationships or for advice on property claims please call the family law team at OTS Solicitors on 0203 959 9123 to discuss how we can help you.
The child maintenance service
The top London divorce solicitors find that most people are aware of the child maintenance service but there is confusion about assessments and payments and the role of the court.
The child maintenance service does not:
- Assess maintenance for a child’s carer or spouse – that is up to the court;
- Assess child support if parents have an equal shared care parenting arrangement – no child support is payable to or from either parent;
- Assess the level of child support based upon family need. Instead, child support is calculated at a percentage of the paying parent’s income regardless of the receiving parent and child’s outgoings and their reasonable financial needs.
The limitations of the child maintenance service can be hard for parents to accept when they need financial support after a relationship breakdown. The court does however retain some powers to make maintenance orders in unmarried family cases.
The court and unmarried family maintenance claims
The best London family solicitors say that the family court has the power to make an order for maintenance in the following limited circumstances:
- The parent who is liable to pay child support has an income that is higher than the maximum limit that the child maintenance service uses when it carries out an assessment of liability to pay child support. The maximum income level that the child maintenance service can use to assess child support liability is currently £3,000 per week or £156,000 gross per year. If the child maintenance service has carried out a maximum assessment of child support, the parent who is the child’s carer can apply to court for what is known as top-up maintenance;
- For payment of educational expenses such as boarding school fees or private school fees or private tuition;
- For payment of expenses connected with a child’s disability.
The scope of an application under the Children Act for additional maintenance or child support is quite limited. Even if a parent is earning £160,000 gross per year it will not necessarily mean that the court will make a top-up child support order under the Children Act .The court will assess the merits of the top up child support application using its statutory criteria to assess financial claims under the Children Act.
Financial claims under the Children Act and the court criteria
The best London family solicitors say that if a financial application is made under the provisions of the Children Act 1989 then the court will assess whether or not to make a financial award based on statutory criteria.
Claims for top-up maintenance can only be made if the income threshold of the paying parent are met, namely an income in excess of £156,000 gross per year.
When considering top-up maintenance applications and applications for lump sums or transfer/settlement of property, the court will consider:
- The income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future;
- The financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
- The financial needs of the child;
- The income, the earning capacity (if any), property and other financial resources of the child;
- Any physical or mental disability of the child;
- The way the child was being educated, or was expected to be schooled.
The difference between a spouse claim and an application under schedule 1
If a couple are married and their relationship breaks down, a spouse can claim spousal maintenance, a share of the family home and any other property, a lump sum and a pension share. Claims are assessed based on fairness and need and the spouse’s claim is not reliant on having a dependent child to look after.
However, if you are cohabiting and you split up, then unless you can make property law claims over a house or other assets, then you have to bring any financial claim under the Children Act. The intention of the Children Act legislation is to provide for any children. That means no claim can be brought unless you have dependent children and it is only in special cases that any property provision or financial support is likely to last beyond a child reaching the age is eighteen or finishing secondary or tertiary education.
The contrast between the financial and property claims that a married parent and a cohabiting parent can make are quite stark. The best London divorce solicitors say that a husband or wife can have a claim against all the family assets as well as a claim for spousal maintenance for life. The size of the financial award and spousal maintenance does depend on a whole range of statutory factors. However, in contrast to the claims of an unmarried partner, the award is likely to be far more generous.
Cohabitee claims and a beneficial interest in property
Some cohabitees who are going through a relationship break down think that there is no merit in trying to make financial or property claims, either because they do not have a dependent child with their ex-partner or because the family home is owned in their ex-partner’s sole name.
The best London family solicitors say it is important to take legal advice if you are a cohabitee who is splitting up from a partner because of the potential for a cohabitee to have a beneficial interest in a property, even if their name is not on the deeds to the property or on the mortgage. If a cohabitee has a beneficial interest in a property then they can claim a share in the equity, so even if a cohabitee cannot make a claim for spousal maintenance and has limited claims under the Children Act, it is still important to take legal advice when a relationship breaks down.
How can OTS Solicitors help?
For legal advice and help on relationship breakdown , unmarried property claims , child support and claims under schedule 1 of the Children Act 1989 please call the family law team at OTS Solicitors at OTS Solicitors on 0203 959 9123 to discuss how our family law solicitors can help you.