Financial help for unmarried couples: schedule 1 claims

A Schedule 1 claim under the Children Act 1989 is a legal process that enables parents, guardians, or other related individuals to seek financial support for a child.

This provision is often applied in situations where the parents are not married or their relationship has ended. The court considers factors like income, earning capacity, property, and other financial resources when deciding on these claims.

The purpose of schedule 1 claims for unmarried couples are to ensure the financial security of children, especially in cases involving cohabiting couples.

Who can apply for schedule 1?

The eligibility criteria for applications under Schedule 1 of the Children Act 1989 are as follows:

Resident parent: The parent with whom the child primarily resides can apply. This is usually the parent who takes care of the child's day-to-day needs.
Guardian or special guardian: A person who has been legally appointed as a guardian or special guardian of the child can apply.
Person named in a Child Arrangements Order: If there is a Child Arrangements Order specifying that a child is to live with a particular individual, that person can apply.
Unmarried parents or cohabitants: Unmarried parents or cohabitants can apply if they have children together. This includes separated couples who were never married to each other or in a civil partnership.

Specific circumstances that qualify an individual to make a Schedule 1 claim may include:

Child Maintenance Service (CMS) cases: When the non-resident parent's income exceeds the maximum threshold set by CMS, a Schedule 1 claim can be made. This also applies when the non-resident parent lives overseas and the CMS cannot enforce maintenance payments.
Physical or mental health disability of a child: If a child has any physical or mental health disability, it can be a basis for a Schedule 1 claim. Financial provision may be needed for their care, treatment, or special education needs.
Resident parent status: If the resident parent cannot agree with the non-resident parent (a parent living outside the U.K jurisdiction) on financial provision for the child, they can make a Schedule 1 claim. The court will consider all the circumstances, including the financial needs and resources of both parents and the standard of living the child would have enjoyed if the family had remained together.

Understanding claims Under Schedule 1

The types of orders that can be sought include regular child maintenance payments, one-off lump sum payments for specific needs (such as educational costs or the cost of a carer for a disabled child), and property settlement orders, which can provide a home for the child until they finish their education.

Under Schedule 1 of the Children Act 1989, there are several types of financial orders that a court can make for the benefit of a child. These include:

Periodical payments: Regular payments made by the non-resident parent to the resident parent for the maintenance of the child. The amount and frequency of these payments are determined by the court considering various factors such as the needs of the child, the income and financial resources of both parents, among others.
Lump sum orders: These are one-off payments made for specific needs of the child, such as educational costs or costs associated with a disability. A court can make more than one lump sum order.
Property settlement / transfer orders: This type of order involves the transfer of property from the non-resident parent to the resident parent for the benefit of the child. This could be used to provide a home for the child until they finish their education. Once the child reaches adulthood, the property is usually transferred back to the non-resident parent.
Settlement of property to be held in trust: Similar to a property transfer order, a settlement of property order involves property being held in trust for the child. The property may revert to the non-resident parent once the child reaches an age specified in the order.

The process of making a Schedule 1 Claim

Initially, the applicant must file a Form A with the court. This application signals the commencement of the legal process and is accompanied by a statement, detailing the financial provisions being sought.

Subsequent to this filing, the court will schedule a First Directions Appointment (FDA), where preliminary issues are discussed and directions are set for the management of the case.

This step may involve the court directing the parties to exchange financial statements, which is a pivotal aspect of ensuring transparency and equitability in the proceedings.

It is paramount for the applicant to prepare a comprehensive statement of issues, chronology, and a detailed budget outlining the financial needs of the child, which are critical in guiding the court's decision-making process. Expert evidence may also be called upon, especially in cases involving complex financial structures or when assessing the needs of a child with disabilities.

Following the exchange of financial disclosures, the court may schedule a Financial Dispute Resolution (FDR) appointment in an effort to encourage settlement without the need for a full hearing. However, if settlement proves unattainable, the case advances to a final hearing, where a judge will make a binding decision based on the evidence and arguments presented.

How does the court decide on a claim?

When deciding on a Schedule 1 claim under the Children Act 1989, the court will consider a range of factors to ensure that the financial provision is tailored to the child's needs. These factors include:

The financial status of the parents: The earning capacity, income, property and other financial resources each parent has or is likely to have in the foreseeable future are all considered.
The financial needs and obligations of the parents: The court will take into account any financial commitments both parents have, including those they have by virtue of any duty to maintain any other child or children.
The financial needs of the child: The court will consider the child's financial requirements, including costs related to education, housing and any special needs the child may have due to physical or mental disability.
The physical and mental health condition of the child: If the child has any physical or mental health disability, this will be taken into account when determining appropriate financial provision.
The standard of living enjoyed by the child before the breakdown of the parents' relationship: The court will consider the lifestyle the child would have enjoyed if the family had remained together.
The manner in which the child was being, or was expected to be, educated or trained: If there are any specific educational needs or expectations, these will be taken into account.

The welfare of the child is the paramount consideration when the court makes its decision on Schedule 1 applications. The court will balance all these factors in order to reach a decision that best meets the needs of the child.

Find out more about the financial rights of unmarried mothers.

The role of child maintenance service (CMS)

The Child Maintenance Service (CMS) is a UK government body that calculates child maintenance payments. The CMS uses a specific formula to calculate these payments, which takes into account the paying parent's gross weekly income, how many nights the child spends with them each week, and how many other children they have to support.

The paying parent, also known as the non-resident parent, is the parent who does not have primary custody of the child. This parent is responsible for making regular payments to the resident parent, who is the main caregiver.

These payments are intended to contribute to the cost of raising the child. The amount of child maintenance that the non-resident parent has to pay is determined by the CMS and is based on their income and circumstances.

However, there are some situations where the CMS might not be able to assist, for example when the non-resident parent lives in a different country. If this is the case, the CMS usually cannot enforce child maintenance payments unless there is a reciprocal agreement with that country.

Financial disclosure and legal fees

Financial disclosure is a crucial aspect of Schedule 1 applications under the Children Act 1989. Both parties are required to provide full details of their current financial position, including income and capital.

This allows the court to make informed decisions based on accurate information about both parties' financial circumstances.

The costs involved in a Schedule 1 application can vary widely depending on the complexity of the case. These costs typically include;

legal fees for solicitors or barristers
court fees for filing the application
and potentially fees for expert witnesses if necessary

Legal fees are usually the most significant expense and can escalate if the case goes to a contested final hearing.

Mediation is an option that can help manage costs. Mediation involves a neutral third party who helps the parties reach an agreement without going to court. It is often less adversarial and less expensive than traditional court proceedings.

However, it requires both parties to be willing to negotiate and compromise.

In all cases, it's important to be detailed and thorough in your financial disclosure. This builds credibility in the case and reduces suspicion and potential disputes, which can help keep legal costs down.

Find out more about how to choose the best family law solicitor.

The rights of unmarried couples

Unmarried couples in the UK, unlike their married counterparts, do not automatically have rights or claims over each other's property when their relationship ends. This is true even if they have lived together for a long time or have children together. The law treats two unmarried people as unrelated individuals, meaning their financial claims on separation are limited.

However, Schedule 1 of the Children Act 1989 provides an avenue for unmarried parents to make financial claims for the benefit of their child or children.

This is an important legal tool for cohabiting couples who are separating, as it allows the resident parent (where the child lives) to seek a court order for financial provision from the non-resident parent.

In contrast, married couples who divorce have a broader range of financial claims they can make against each other, including for spousal maintenance, lump sum payments, property adjustment orders, and pension sharing orders.

These rights are not available to unmarried couples.

Speak to a family law solicitor now by calling us on 0207 222 5381 or emailing webenquiries@lbmw.com

Useful Links

Unmarried father’s rights UK

How to separate when you have a child

How does a break up affect a child

What happens to children if a parent dies?