In this final blog of the series (see parts 1, 2 and 3 below) examining the legal status of children, we look at the limited claims that may arise when Bea and See (a cohabiting couple) separate as well as the financial claims which can be made on behalf of their child. We also look at what happens when parenting issues arise and the legal process and the law should matters proceed to court.

Unmarried cohabitation

Bea reassures herself that she has all the financial status and protection of being See’s common law spouse by moving in with him – though as any first year law-student would remark, common law spouses don’t exist!

In fact Bea has little more than:

  • Rights of protection from abuse (for example under s76 of the Serious Crime Act 2015, under the Protection from Harassment Act 1997).
  • A right not to be summarily ejected from the flat because she is likely to be treated as having a licence to remain. She also has protection under the Protection from Eviction Act and possibly under the Family Law Act 1996 part IV.

But that is about it, unless or until there is a pretty serious or formal (and ideally written) agreement that the property is to be treated as joint or shared in some other way. Disputed issues as to ownership would be resolved under the Trust of Land and Appointment of Trustees Act 1996 in some pretty fiercely expensive and uncertain litigation.

This apart and as we will see below, Bea’s financial rights are really only:

  • A claim for Dee through the Child Maintenance Service; and
  • To transmit certain claim for their child against See under Schedule 1 of the Children Act 1989.

Illegitimacy

Because Bea and See are not married, Dee is “illegitimate”.  It is pretty difficult to see why this is interesting any more … it doesn’t generally affect inheritance or citizenship.  It is possible that a few private discriminations could remain – for example, if there was some vast family trust behind See, it is possible that it would specify that only “legitimate” children were potential beneficiaries of the trust – but the term is really now of historical interest only.

At the end of cohabitation – finances

Sadly things do not improve in this difficult relationship and a short while later, Bea is at her mother’s planning what to do next.  Her claims against See are likely to be limited to:

  • A weak to non-existent claim for a share on the shared home with See under the Trust of Land and Appointment of Trustees Act 1996 (usually “ToLaTA”).
  • A claim against See for Dee under the Child Support Act 1991, which is pursued through the CMS and which will secure roughly 15% of See’s net income, reduced by one seventh tranches in line with the number of complete nights per week on average that Dee spends with dad during the year.
  • A claim through the courts under schedule 1 of the Children Act for such funds as she can’t access herself (and which, holding in mind the scale of See’s resources are reasonable) to:
    • Provide Dee with a reasonable home (ie funds / property to be returned to See when Dee ends her education).
    • Equip that home.
    • Probably provide Dee with a car.
    • Perhaps provide for educational costs or any costs related to significant disability.
    • Bea can also ask Dee to fund her legal costs so far as reasonable.

Fortunately, against that pretty poor-seeming menu of claims, Bea realises that she might as well pick up her claims against former husband Abe, which have yet to be resolved … more fortunate still Abe has struck gold under their 3 acre paddock and all will be rich beyond their wildest dreams and baby Dee is well provided for.

At the end of cohabitation – parenting issues

See wishes to be involved in Dee’s life. His best course will be to work things through with Bea – they should use mediation services to resolve issues and build up a plan for how they will parent Dee together.

A minority of cases (but still more than there should be) end up at court often with a judge or, more likely, a panel of magistrates doing their best with an overstuffed court list.

See can only issue his application if he has attended a MIAM (a mediation information and assessment meeting) to hear about the benefits of mediation (ie. an attempt to divert See from the course he is pursuing). Having done so, he is then free to issue his form C100 (setting out what he seeks and why) and would add a form C1A if he thought there were issues as regards baby Dee’s safety.

Bea will reply to these papers. CAFCASS will carry out basic checks as regards safety.  In theory the case will be at court for a “FHDRA” [a First Hearing & Dispute Resolution Appointment]. Many cases will be resolved at this point – unsolvable cases or those with safety issues will advance over many months following to:

  • Statements.
  • Fact finding hearings.
  • CAFCASS s7 CA’89 reports.
  • Dispute resolution appointment.
  • Final hearing.

The court’s approach is dealt with elsewhere but in brief, key points weighing on the court’s determination will be:

  • Promoting the child’s welfare (having regard to a welfare checklist set out in s1 CA’89).
  • Safety.
  • The Child’s Voice in line with their age and understanding.
  • Parental capacity.
  • An assumption of involvement.
  • Minimising delay to a resolution, respecting status quo where relevant and only making an order where that will have a positive impact for the child.

The court’s decision must be expressed in the form of:

  • A child arrangements order.
  • A prohibited steps order.
  • A specific issue order.

There are enforcement orders to apply for where there is non-compliance.

Scenario 2: At marriage of Bea and See

At last Abe and Bea’s divorce is through and Bea and See marry.

  • Had See not been put on the birth certificate, then the act of marrying would have legitimated Dee.
  • Her marrying See is likely to make it very hard to pursue claims against Abe (he is more likely to be able to keep the goldmine).
  • Henceforth and if this marriage falls apart, there will be financial claims to pursue against See if they separate, again under the Matrimonial Causes Act 1973 …

Though Bea has decided that the better course lies in training as a family law barrister, where she quickly establishes herself as the go-to doyenne of family law building a million pound practice a year … See realises how things are going to be and attends an advanced masseur’s course.  Bea and See are happily married for life and have eight further children.

The author James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost-effective approaches to divorce and separation including mediation, arbitration and collaborative law. James helps clients to take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. For further details, please contact James at E: jp@flip.co.uk, T: 020 7420 5000 or visit James’s website profile here.