Unmarried families – financial provision for children on separation

When a couple separates (whether married or not), the parent who spends less time with the children will be required to pay child maintenance in…

When a couple separates (whether married or not), the parent who spends less time with the children will be required to pay child maintenance in accordance with child support agency guidelines (currently regulated through the Child Maintenance Service).  Many parents seek to agree an amount to pay in line with the formula used by the Child Maintenance Service. If agreement cannot be reached, an application to the Child Maintenance Service is necessary. 

However, financial claims for children are not limited to maintenance claims. On divorce, married couples will regulate financial arrangements through the divorce legislation.

Unmarried parents can also seek additional financial support for a child, often in the form of provision of property under Schedule 1 Children Act 1989, which can secure a property for both the child and the parent with care to live in. 

Orders made within Schedule 1 can also include enhanced maintenance payments in certain circumstances, school fees, lump sums for certain costs or debts, and settlement of properties, to name a few.

The court takes into account a number of factors when assessing the parameters of a suitable settlement, resulting in a bespoke settlement for each family. All provision must be for the benefit of the children – not the parent.

Many parents are able to agree arrangements for the future financial support of their children without the need for specialist legal intervention. However, many do need support from lawyers and can be daunted by the prospect of litigation. The stress of being involved in litigation can be emotionally draining and costly.

In recent years, the family courts in England and Wales have actively promoted non court based Dispute Resolution (DR) to encourage families to focus on resolving their disputes constructively and without acrimony. The breakdown of any relationship is difficult particularly when it involves children and financial matters.  Non court based Dispute Resolution techniques can allow parties to engage with each other in an independent setting to express their positions in a supported environment, with the hope of reaching an agreement which works for all involved. DR options can also go some way in reducing the costs which are likely to be incurred if matters proceed to court.

Mediation is a flexible process which can involve the parties discussing matters directly in a supported environment with an independent and as such, neutral,  mediator. It is usually advisable for parties going through mediation to retain their own solicitors to provide independent advice following mediation sessions, to assist them in making informed decisions.

Collaborative law is another form of DR where parties work with their own trusted professional advisors and endeavour to reach settlement through supported negotiations. This process also allows parties to introduce other professionals such as accountants, tax experts or child specialists, when deemed necessary. The process of working together to reach a settlement, whilst having their own legal team on board, makes the notion of splitting up easier to manage and more positive in the long term for the children.

Arbitration is the more formal option of DR. Here parties enter into an agreement and jointly select a qualified arbitrator to hear and resolve their dispute. The arbitrator will set the timetable and ensure the matter is heard fairly and swiftly. Any decision reached by the arbitrator is binding on both parties and will be upheld by the court. It is a quicker and often more cost effective alternative than going through the court process.  It can also ensure privacy in the event of a high profile dispute.

The Children and Families Act 2014, introduced mandatory participation in mediation (subject to certain exceptions, outside of the scope of this article) prior to issuing a claim at court. This approach ensures that parties have to consider the option of mediation. As with any dispute or litigation, Schedule 1 claims can become acrimonious and as such, considering forms of DR can go some way in reducing the risk of acrimony between the parties, and help ensure a positive relationship is maintained for the sake of the children.

It is strongly recommended that anyone seeking to make a Schedule 1 Claim seeks specialist legal advice to explore all available avenues.

Meera Shinh is a Solicitor in the family law team
Meera.Shinh@weightmans.com

Share on Twitter