Guide to child financial provision upon relationship breakdown for unmarried couples
In the event of parties separating and leaving the majority of the responsibility of childcare with one parent, the other parent is required to make regular financial provision towards the maintenance of the children. As unmarried couples do not have the same legal obligations to one another as their married counterparts, in the vast majority of cases the separation of their financial affairs is more straightforward. They do not have the same opportunity as divorcing couples to assess the financial needs of the children. We suggest that unmarried parents also review our guide to financial provision on breakdown of cohabitation. It is common that the parents will come to an informal agreement between themselves regarding child maintenance. This is frequently based around the standard calculations that the Child Support Agency (‘CSA’) carries out.
Child maintenance may be sought above this level where it is put forward as appropriate that the less wealthy party should receive child maintenance over and above the minimum level required in view of the other’s wealth, and in some of the nuances to the most basic scenario such as provision of funding for private school fees, extended educational provision through tertiary education and provision for adult children with special needs.
Less usually, the parent with care will make an application for an assessment to the Child Support Agency (CSA), soon to be replaced by the Child Maintenance Service (CMS). However neither of these organisations will have jurisdiction to make such an assessment where the non resident partner is resident abroad.
The CSA base their standard calculations on the non-resident parent’s net income, whereas the CMS will base their calculations on the non-resident parent’s gross income. If parents are unable to come to an agreement, and both reside within the jurisdiction of England and Wales, then the main carer can contact the CSA or the CMS who will administer the payment of child maintenance. The body that deals with your case will depend on how many children you have and when you make your claim. Eventually all claims will be handled by the CMS. Both bodies have the ability to recover the money on your behalf by taking the payments directly out of the other parent’s income if necessary. In the event that either parent lives outside the jurisdiction then the main carer will not be able to apply to the CSA/CMS, and the court will instead have jurisdiction to deal with the issue of child maintenance.
The CSA and CMS calculate the minimum level of maintenance to be paid by the non-resident parent to the child’s primary carer. A child for the purposes of child maintenance is someone aged under 16, or under 19 and in full-time secondary education. The CSA or CMS will also apply a discount to the paying parent’s liability depending on how many nights of the week they have overnight contact.
In addition to child maintenance, it is also possible to obtain a capital lump sum and/or to apply to the court for the transfer or settlement of family property for the benefit of the children. The CSA and the CMS do not have the ability to make capital awards or deal with the settlement of property. However, in cases where the paying parent has substantial assets it is possible to apply to the court for such financial provision to be made. It is also possible to request additional child maintenance over and above the amount assessed by the CSA/CMS where the paying party is a high earner, or to seek an order for the payment of school fees or costs associated with a child with a disability
When considering making an order for further financial provision for maintenance or indeed capital provision, the court will have regard to all of the circumstances of the case and in particular the following:
a) The income, earning capacity, property and other financial resources which each of the parents has, or is likely to have, in the foreseeable future.
b) The financial needs, obligations, and responsibilities that each of the parents has, or is likely to have, in the foreseeable future.
c) The financial needs of the child.
d) The income, earning capacity (if any), property and other financial resources of the child.
e) Any physical or mental disability of the child.
f) The manner in which the child is being, or was expected to be, educated or trained.
In addition to the above factors, in the case of a step parent the court will also consider;
a) Whether that person has assumed responsibility for the maintenance of the child and, if so, the extent to which and the basis upon which he assumed that responsibility, and the length of the period during which he or she meant that responsibility.
b) Whether he did so knowing that the child was not his child.
c) The liability of any other person to maintain the child.
If you are interested in discussing child financial provision upon relationship breakdown for unmarried couples please see How Vardags can help with child financial provision upon relationship breakdown for unmarried couples.