If you are living with your partner and you are not married, you may think that you have rights similar to those who are married. People often refer to this as ‘common law marriage’.

Unfortunately, this is not the case at all and it is very important if you are living with someone and you are not married to them to understand how the law for you will differ to the law if you were married to that person. This is particularly important for you if you have children and perhaps have have given up a career to care for them while your partner has carried on with their career. The law around those who have been in a relationship but never married remains very out of date and very different to the law for married couples. The law for separating co-habitants is in need of updating especially with so many people opting not to marry.

Did you know that over 50% of children in this country are born to unmarried parents and this percentage is rising? People who are wrongly under the impression that they have similar rights to those who are married.

So, if you have been together with your partner, have children, joint bank accounts and/or if you are living with someone and you are thinking about giving up work and going part time then this is for you.

It is important to understand some key differences between the law around separating unmarried parents and divorcing parents. The law for divorcing parents is set out in the Matrimonial Causes Act 1973 where the starting point for division of all assets, regardless of whether they are in joint names or the sole names of one party, is equal. In other words when you are married and property or other assets are solely owned by the other party, you as the non-owning spouse will have a claim on those solely owned assets. The longer the marriage the more difficult it is for the owning party to say that solely owned assets built up during that marriage should not be shared equally with the non-owning spouse. The law for separating spouses takes this even further and if there is a pension this would also be equalised in a long marriage even if some or, in some cases, all of the pension was built up prior to the marriage. This may seem unfair to the spouse who has saved into their pension and the other spouse hasn’t but the law focuses on both being able to have a home and having enough to live on in the future. The court can even award one party to a marriage a larger percentage of the assets again regardless of ownership when taking into consideration a number of factors such as

• the length of marriage;
• age of the parties and whether, for example, they are of an age where pension provision is going to be relevant.
• earnings and ability to earn including whether one party has been out of the job market for some time due to bringing up children and will now have to retrain to get back into the job market;
• contributions to the marriage (home making in a marriage being considered to be an equal contribution to the money the breadwinner brings in. when you are married, it will not wash to say :- ‘I paid everything and she didn’t work’
• standard of living during the marriage and, last but not lease
• the children who will always be the first consideration of the court under the MCA 1973 in terms of their housing and other needs

There are not the same considerations for separating unmarried parents. The law for co-habitants is contained within The Trusts of Land Act and Appointment of Trustees Act 1996 (TOLATA)

It may be that the property you live in is jointly owned but half of the equity is not going to enable you to re-house yourself and the children or maybe the property you have been living in is owned by your partner. Either way, under the Trusts of Land and Appointment of Trustees Act, unless you can prove otherwise, ownership will be as it is stated on the title deeds of the property. To prove otherwise you would have to show for example that you paid towards the deposit when the property was purchased and/or you paid directly towards the mortgage or paid for/carried out work which significantly improved the value of the property (which has got to be more than a coat of paint). These things can be quite difficult to prove. Under the law of trusts, property ownership is purely declaratory unless you can prove that there was intention that ownership would be otherwise such as the fact that you paid for a new bathroom, for example, which means that you should have what is known as an ‘equitable interest’ or you did something to your detriment which was a joint decision and you relied on the fact that there was a ‘common intention’ that you would have some interest in the property.

Put another way, you did something which set you back such as giving up your work and you can show there was intention that you would jointly own the property or you can show that you contributed to the increase in equity or value of the property by paying towards the mortgage, towards the deposit or you paid for that new bathroom. Sometimes people can show equitable interest by proving that they physically carried out work on that new bathroom. This is a highly complex area of family law and it is always best to get things established at the outset in the better times in a relationship. For whatever reason many people don’t take necessary steps to ensure that they are protected which is particularly unfair when children come along and one parent gives up work. It is advisable to get something in writing to demonstrate what the intention is for ownership of the property.

In addition many separated primary carers of children to unmarried parents find that, for whatever reason, their claim under the Child Maintenance Agency is very limited. For example, the CMS are calculating from a tax return which shows only a small amount of income when the other parent is self employed and offsetting much of the profit against tax. It may be that the other party’s income has significantly increased from what is shown on the tax return which the CMS have access to so the maintenance is calculated significantly lower than it should be.

These scenarios can cause real hardship and unfair situation particularly if the parent with care gave up career perhaps but is now in the financially weaker position with the other parent on a high income with a good standard of living.

The good news is that there is a remedy under Schedule 1 of the Children Act 1989 for those in these type of situations which could potentially leave them and children in vulnerable situations. This remedy under Schedule 1 of the Children Act is also available for married parents who entered into a pre nuptial agreement which seemed fair at the time but a few years later and with the arrival of children and giving up lucrative career of the primary carer parent, the prenup would now but unfair

So what types of financial relief can be considered to be appropriate for you under Schedule 1 of the Children Act if you are an unmarried parent or a married parent who entered into a pre-nuptial agreement which is now very unfair?

Housing while children are in their minority including equipping the home you and the children live in; lump sums for one-off items like a suitable cars, for instance; and educational costs which could include that extra maths tuition your child needs or the school trips you cant afford. In addition it may be appropriate to seek some additional maintenance (called ‘top up’ maintenance) where your ex is a very high earner.

It is very important to ‘front load’ any Schedule 1 Application with as much evidence as possible. For instance, you should prepare a budget for your child or children; some narrative including as much evidence as possible about the standard of living you enjoyed during the relationship and the standard of living of the other parent since separation and therefore the extent at which the other parent should be contributing. I am not suggesting stalking your ex or soon to be ex but if there is a post on social media showing a high standard of living ( probably not a new tattoo but expensive trips abroad for example) this sort of thing can sometimes be very useful.

As with most proceedings, schedule 1 applications can be very long, often running along side CMS proceedings, and because most of the reported cases result from high earning households it is very difficult to predict the outcome.

That said, the case law is evolving all the time, and with carefully drafted correspondence, before you make an application called a ‘ letter before action’, to the financially stronger party setting out the law and case law including the schedule of needs, referring to trips abroad perhaps (mentioned above) it is usually possible to settle matters without the need to make an application.