Financial Provision for Adult Children

 

In this blog, Senior Associate Hannah Greene, discusses what financial provision is available for adult children according to the law.

In October 2023, a 75 year old woman in the city of Pavia, in northern Italy, won a court order to remove her two sons aged 40 and 42 from her house. Her sons were living with her rent free and refused to contribute financially to the running of the household or assist in the cooking and cleaning. The Italian court ruled to evict the two sons who were both working and receiving an income – but had refused to move out. 

Under Italian law, parents do have a financial obligation to continue to maintain their adult children for as long as necessary. The term “necessary” covers a large range of financial situations and does not provide an age-related cut off but in this case, the court viewed that the 40 and 42 year olds son had exceeded that necessity.  

In that context, it is interesting to consider the parental obligation to provide maintenance and other financial support for children in the jurisdiction of England and Wales. Whereas the issue of financial support for minor children is quite straightforward the provision for adult children is more limited. 

Higher education  

Where parents are separated, there is an obligation for the “non-resident parent” to pay child maintenance to the “resident parent” until the later of a child attaining 18 or finishing secondary education.  

As part of a financial settlement on divorce, a court may order, or parents can agree, to fund the cost of children’s university or for child maintenance orders to continue until the end of their university term.  Some examples of maintenance orders during university would include a proportion (e.g. two thirds) being paid directly to the child, and a proportion (e.g. one third) being paid to the parent who they live with outside of term time as a “roofing allowance”. Many parents cap this maintenance agreement at the end of the first degree – sometimes with provision for a gap year. 

Although a court may order such provision during university this is not a guarantee that such an order will be made. Whether a court would impose a maintenance obligation for that adult child will depend on the specific circumstances of that family. For example if a younger child is about to attend university – the court would consider the context of the family and whether provision was provided for older children or whether they were expected to “pay their way”, along with the affordability for the family. 

Health or disability  

Provision for children may also be extended past their minority where there are “special circumstances” such as health issues, or disability. The court is able to make a number of provisions where an adult child has a continuing dependency from childhood. This includes periodical payments and potential capital settlements. 

Can an adult child apply for financial support from a parent? 

There is provision that an adult child is able to apply themselves against a parent for financial support if they are in education or undergoing training for either a professional or vocational trade, or where there are special circumstances which justify the making of an order. An adult child is only able to make such an application if there was an order previously for child maintenance made before they turned 16, or one which had effect between the ages of 16-18. Essentially it would be an application to either extend or revive the term of child maintenance.  

These orders can only be made against parents who are separated. Section 2 (4) of Schedule 1 of the Children Act 1989 states that “no order shall be made under this paragraph at any time when the parents of the applicant are living with each there in the same household.” Children whose parents remain living together do not have a right to bring a claim against them. 

This position was reconfirmed in the Court of Appeal judgement of Siddiqui v Siddiqui (2021), where a 41-year-old man attempted to sue his parents for financial provision. The son in question was a qualified solicitor with an undergraduate degree from Oxford and further postgraduate qualifications. He was unemployed and had been living rent free in a flat owned by his parents in London and receiving a generous monthly allowance. After a falling out, his parents reduced his allowance and asked him to leave the flat. He therefore applied for the allowance to continue on the basis that he alleged he was a ‘vulnerable’ person. The Court of Appeal however ruled that there was no jurisdiction to make such an order as his parents were not separated.  

Negotiated settlements and tax planning

Many couples, prior to separation, intend to provide some level of financial support to their adult children. Where these parents are able to do so, it can be helpful to consider what provision they would like to jointly make for their adult children as part of the divorce process. For example, some parents will wish to provide funds to assist their children onto the first rung of the property ladder. 

It can be useful to combine the overall separation of assets with future tax planning when negotiating a settlement. Whilst a couple remain married, they are able to leave all their assets to the other spouse without incurring inheritance tax, and then the surviving spouse’s estate can have the benefit of both parties’ nil rate band. A surviving spouse can make distributions without incurring inheritance tax (NB if the surviving spouse were to die less than 7 years after the distribution some inheritance tax may be due although it may be tapered). After divorce, these parents’ estates will each be subject to inheritance tax above their nil rate band. 

Receiving specialist tax planning advice as part of the divorce process can help a separating couple to continue to jointly provide for a children in a way that they had always envisaged. As part of that specialist tax planning advice they may consider whether setting up a trust would meet their family’s needs and align with their intentions – or whether making distributions as part of a divorce settlement would work for their family. 

Although a court would be unlikely to impose a provision outlined above – it would endorse these provisions if they were by agreement, as long as both of the parents’ needs are met. 

Hannah Greene is a Senior Associate at Family Law in Partnership. She is a collaboratively trained lawyer who advises on all aspects of divorce and separation, including financial and children matters, including prenuptial agreements. Hannah’s focus is on providing clear, pragmatic advice whilst maintaining an empathetic approach, taking all available opportunities to minimise conflict, where possible.