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Posted 13 March 2018
by Aimee Aspinall

Financial Provision for Children in Families with Unmarried Parents

Child who requires family law solicitors

Schedule 1 to the Children Act 1989 is often known as the “millionaires’ defence”, but what about families with unmarried parents who have more limited assets?

According to the most recent data released by the Office of National Statistics, the fastest growing family type over the last 10 years is cohabiting couples (both with or without dependent children). The proportion of cohabiting couples increased by 31.8% over a 10 year period.

Most unmarried parents seeking provision for their children are not likely to be familiar with Schedule 1 to the Children Act and are therefore likely to turn to the Child Maintenance Service (what was once the CSA).

Schedule 1 applications are not limited to periodical payments (known as maintenance). In addition to having the power to order periodical payments or secured periodical payments, a court can also order lump sums or transfers/settlement of property. The court’s power further extends to many orders for periodical payments and lump sums for children over the age of 18 who remain in full time education or where there are special circumstances, i.e. if a child suffers from disabilities.

Traditionally, the only known judgments on Schedule 1 applications have concerned “big money cases” where the Father’s assets vastly exceed his own needs. However, there are now examples of cases where the court has considered applications where the Father does not have assets sufficient to comfortably meet both his own needs and those of his child(ren). The courts are very familiar with cases of this nature but usually where the parents are married.

As with all applications under the Children Act, a child’s welfare is of utmost importance in the court’s consideration and determination of matters of this nature.

How would I apply for this type of order?

An order pursuant to Schedule 1 can be made against a “parent” by a parent or a person that has Parental Responsibility. See our Factsheet “Making an application in the family courts in respect of children” for details about Parental Responsibility.

Applications are currently made on a standard Form A1 and parties, similarly to within financial remedy proceedings, are required to complete a Financial Statement (Form E1) setting out their capital and income positions. There are however suggestions of an introduction of a new form.

In deciding whether to exercise its powers under paragraph 1 or 2 of Schedule 1 to the Children Act 1989 the court shall have regard to all the circumstances including:E+W

  1. the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
  2. the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
  3. the financial needs of the child;
  4. the income, earning capacity (if any), property and other financial resources of the child;
  5. any physical or mental disability of the child;
  6. the manner in which the child was being, or was expected to be, educated or trained.

Clearly, as the demographics of types of family in England and Wales changes, views need to change as well. It should not be the case that unmarried parents feel their only recourse is through the Child Maintenance Service. Anyone considering making an application under Schedule 1 for financial provision for their child will need to consider the costs involved in doing so and whether it is proportionate, and we will be able to provide an estimate as to costs should you wish to instruct us.

As with all applications to the family court, unless exemptions apply, it will be necessary for an Applicant parent to attend a Mediation Information and Assessment Meeting (MIAM). Please see our Factsheet on MIAMs for further information.

Should you wish to discuss matters with us further, please contact our experienced team of family law solicitors in Exeter to arrange an initial free appointment.

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About the author

Aimee Aspinall

Associate of CILEx

Associate of CILEx in the Exeter family team