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Unmarried families; what happens when they split?

03rd September 2014

A recent BBC article highlighted that the proportion of children born to unmarried parents rose in 2012 for the 40th consecutive year to 47.5%. By 2016 it is expected to rise to more than 50%.

Figures from the Office for National Statistics go back to 1938 when just 4% of babies had unmarried parents.

Clearly things have changed. But what happens when these relationships breakdown? Married people and those in civil partnerships enjoy a raft of potential claims. Strangely, a person married for 5 years with a child enjoys far greater rights than someone who has lived for 20 plus years, to all intent and purpose, in exactly the same way but who is unmarried.

The Law Commission proposed reform in this area to give more rights to unmarried families, but to date this has not been subject of any legislation. In fact many people still believe that there is  “common law marriage”. Let’s be clear; no such concept exists in English law.

Despite reform in other areas, notably civil partnership and same sex marriage, as yet no progress has been made to bring cohabitants in from the (relative) cold.

So what can you do if your relationship breaks down and you are not married?

Here the presence of children is key. All parents have an obligation to provide financial support to their children. Day to day living costs are covered by the Child Support regime, but many people are unaware of the financial claims under the Children Act 1989. These cover a child’s housing needs and non-maintenance costs and a parent can make unlimited applications for lump sum payments. Additionally, claims can be made for the costs of educating a child.

Generally, these are claims exclusively for the benefit of a child and by default, the parent with whom the child lives, during their childhood, akin more to a loan than an outright transfer. But, the law has develop so that in certain cases a “carers allowance” can be claimed (query; is this not maintenance?).

The court can make an order which enables a parent and child(ren) to remain living in the family home, even if that property is in the sole name of the other parent. A cohabitant may also have a claim under the Trust of Land Legislation if they have made substantial contributions to a property which is not in their name.

As always much depends on the facts of each case and in particular the financial resources of the parties.

If you would like to know more about this or other aspects of family law, please call Jim Richards to discuss in confidence.

Family Law
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