Caroline Swain, Partner, Matrimonial and Family Law explains how there’s still a marked difference in the financial rights of married and unmarried parents after a separation.

Unmarried co-habiting couples are the fastest growing family type in the UK. With this family unit on the rise, it’s surprising the awareness of unmarried parent’s rights isn’t higher.

Most assume that they are in a ‘common law marriage’, and if they were to split, would share the same rights and responsibilities as married couples. Perhaps surprisingly, unmarried parents don’t have the same rights as married parents when seeking financial support for children after separation.

Married or not, separation and divorce can be a difficult time, with parents wanting to protect their children as much as possible. I’ve helped hundreds of married people through divorces and advised plenty of unmarried parents on their rights regarding separation.

Married or unmarried – key points to consider

Parental rights

For unmarried couples going through a separation, there’s one very important point to consider – parental rights.
Mothers automatically have parental responsibility for their children. Fathers only have this right if they were married to the mother when the child was born – if they weren’t then being the natural father is not enough to give parental rights.

There are actions that can be taken to acquire these rights, but if this wasn’t done before the break-up it can be difficult.

Legal obligation

It’s also important to note that married couples have a legal obligation to each other, and as a result, a divorce (to break that legal contract) can be a complex way to divide assets. For those who are unmarried, due to the lack of legal obligation, it can in some cases be easier to separate financial affairs. However, where children are involved, this can make it more difficult to assess the financial needs for children.

Financial rights

An ideal situation would be that both parents come to an informal agreement regarding child maintenance. Married or not, in most cases parents are required to pay child support. The amount payable is worked out by the Child Maintenance Service (CMS).

If you are married and get divorced there will (eventually) be an agreement as to how assets are divided. This will be decided through the courts. The parent with custody can ask the other parent to provide funds for a family home – and for married couples this money is given outright.

For those who are unmarried there will be no divorce to divide assets, so any payments will be decided through the CMS. However, this can be detrimental to an unmarried parent who has sole care for children with inadequate resources to do so.

There is a way around this. Schedule 1 of the Children Act 1989 states that an unmarried parent (the ‘parent with care’) can claim additional financial support from ex-partners to benefit the children. This is currently the only route available and not one which is well known.

However, if you are unmarried then any capital given to provide a family home is effectively a loan and not given outright. It’s lent to the parent with custody while the children are under 18. Once the children are legally adults the house must be sold and the other parent given their money back.

I’ve helped many parents claim the money they need and are entitled to this way. Not many people know about Schedule 1 claims and instructing a solicitor to act on your behalf can take away some of the pressure and worry at this difficult time.

It’s vital to understand all the options available to you. At BPS Family Law we pride ourselves on offering a compassionate and caring service putting the holistic situation for any family first. If you’re looking for a family lawyer, then you can get in touch with Caroline at caroline.swain@bpsfamilylaw.co.uk or by telephone on 0161 926 1430.