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Injustice for Unmarried Couples
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On 7 February, Sir Nicholas Wall, The President of the Family Division appeared on the front page of The Times commentating about the continuing injustice for couples who have concluded a relationship outside of marriage. Fiona Lazenby, family law solicitor and head of family law at Flint Bishop LLP examines the current position where property is concerned.
The implementation of the statute law by courts to date has been restrained. The provision is for the child during their dependency or for their education, not for the former partner. Whilst there is scope for the court to make periodical payments to a carer for the benefit of a child, that itself is a separate topic. Where housing is concerned, the court is entitled to make orders to transfer property for the child’s benefit, or to order a settlement of property during the child’s dependency. The parent is not the benefactor of the property. A typical settlement could be, for example, the provision by the father of £220,000.00, which is used to purchase a property to house the child and their mother until the child reaches 18 or completes university. The father’s interest in the property purchased would be whatever percentage of the gross purchase price, the sum of £220,000.00 represents.
In quantifying the appropriate Order for housing for the child, the Court considers the independent financial wealth of the couple, financial needs, and the manner in which the child was being, or was expected to be, educated. The child is entitled to be brought up in circumstances bearing some relationship to the father’s current resources and his present standard of living. Courts have articulated a strong desire that mothers should not personally benefit from having to care for their children.
The key questions for the couple who lived together, rather than married, could be, is it part of a child’s dependency the need to know that his mother will be secure in her home? Does that dependency really end when the child is no longer in education? In 2007 the Law Commission recommended the introduction of a new scheme of financial remedies which would not apply to all cohabitants and where it did apply would only give rise to remedies relating to contributions made to the relationship. In March 2008 the previous Labour government responded to the Law Commission’s Report by announcing that it would take no further action on the recommendations. It is clear from the comments of Sir Nicholas Wall that there is judicial thinking for progression in this area so as to reduce the current unfairness. In the meantime it will be interesting to see how the courts develop the housing provision interpretation. Whilst each case is based upon on its own specific facts it may well be in a mother’s interest to defer matters until the base of the case law starts to move for the better, keeping a keen eye on the child’s age as to whether such delay is permissible.
If you have any queries about this area or any other area of family law, whether in terms of couples living together and any of the financial or issues relating to children in that area, or in relation to divorce and financial issues, contact Fiona Lazenby at Flint Bishop on 01332 226174 or fiona.lazenby@flintbishop.co.uk
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