Unmarried couples who are separating do not have the same rights and options as married couples when it comes to supporting children on separation. One partner may be faced with the prospect of being made homeless if the property they live in is registered solely in the name of their ex-partner. They may have insufficient income and then be met with an ex-partner who is not prepared to continue to financially support them or the children day-to-day. The other partner may own the property or earn the higher income and be unsure about their obligations or may be faced with demands that seem unreasonable. Both need advice. This blog aims to present options for the parent with care in need of financial support.
A claim under schedule 1 Children Act 1989 is usually made when the resident parent of the child is making a claim for financial support from the wealthy non-resident parent (someone earning more than £3,000 gross per week).
What is a Schedule 1 children act application?
An unmarried parent can make a claim under Schedule 1 of the Children Act 1989. The purpose of Schedule 1 is to allow the family courts to make financial provision for children, which may be a capital or income award. It is not confined to unmarried couples but most commonly used by them. A parent, guardian, or person with whom a child lives with under a child arrangements order can apply to the Court for financial provision. There is however a significant difference between a Schedule 1 claim and the claims that can be made by a parent in the context of a divorce. The claim under Schedule 1 can only relate to the needs of the children, not the needs of the parent. The term ‘for the benefit of the child’ has been given a wide meaning by the courts and may include expenses incurred by the parent with care such as travel costs, legal costs and the costs of contact where contact might otherwise not be capable of being maintained. The courts have found however that there should be ‘…no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day’ (per Thorpe LJ in Re P (Child: Financial Provision) at para [49]).
Generally, any financial child support will last only until a child is 18. The Schedule 1 provision is particularly relevant where there is some wealth, or a child has a disability. Although most often used by unmarried couples it can in certain circumstances be made in favour of or against step-parents.
What financial orders can be made under Schedule 1?
The Court has the power to make the following Order for the benefit of the child:
- Periodical / secured periodical payments – for example this can be to meet the child’s school fees or provide a top-up to maintenance under the Child Maintenance Service ‘CMS’ (further information about this is set out below).
- Lump sum orders – to be used for example to purchase a car, or for furnishing a home, or even dental care.
- Settlement of property or transfer of property – Most commonly used where the family home is in the sole name of the non-resident parent. This will usually transfer back to the rightful owner when the child attains the age of 18 unless there are exceptional circumstances.
The court may make an order for periodical payments under Schedule 1 to be paid to the applicant for the benefit of the child, or directly to the child.
Child maintenance and the family courts
Most child maintenance payments for children fall under child maintenance and are governed by the child maintenance service. It is a common view though that there are constraints and shortcomings under this system. The family court may only award maintenance payments such as top up payments for children where the parent who is making the payments exceeds the maximum threshold income for child maintenance. The maximum threshold varies on whether the old Child Support Agency was involved, or the newer Child Maintenance Service. For the Child Support Agency, the maximum threshold is a net income of £2,000 net per week whereas for the Child Maintenance Service this is £3,000 gross per week. The top up will be based on the child’s needs and you must have first established a claim with the CSA/CMS and established that the maximum threshold applies.
The court has a wide discretion and the overall result achieved by orders under Schedule 1 should be fair, just and reasonable taking into account all the circumstances and with a discretionary element as to the degree to which a child should be brought up in circumstances which bear some relationship to the paying parent.
The judiciary have strong and clear views on this. In Re P (Child: Financial Provision), Thorpe LJ said (at para [49]) that ‘…the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility, the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly.’
How to make a Schedule 1 application
- Before making a Schedule 1 application you will need to gather information and consider the following:
- Earning capacity and income of your ex-partner. Do you know how much they earn?
- Property ownership. Who is the legal and beneficial owner of the property?
- Affordability. How much financial support will be needed to provide a home for the children?
- Mediation. Have you asked your ex-partner to attend mediation to try and reach an agreement?
An experienced family lawyer will guide you through this process. The more information you have to hand about you and your ex-partners finances the better.
Alternatives to Schedule 1
If this option is not applicable all is not lost, another option for an unmarried person separating, to continue to provide them and the child a home, could be to bring a claim under the Trust of Land and Appointment of Trustees Act 1996.
For advice on the options always consult an experienced family lawyer.
Gemma Scourfield
Family law solicitor Haverfordwest
