Rights that unmarried couples do and don't have

  • Describe the differences in property ownership between married and unmarried couples
  • Explain how property ownership is determined in the case of unmarried couples
  • Summarise how child maintenance is determined

Child maintenance is payable until the child is 16 or leaves secondary education, whichever is the later. Parents are also free to agree maintenance arrangements between themselves.

Under Schedule 1 of the Children Act 1989, parents may be ordered to make capital provision for the benefit of their children. This could take the form of a lump sum payment, or a transfer or settlement of property in favour of a child.

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Importantly, these are not payments in favour of a former unmarried partner. Any decision is at the court's discretion, but it will be guided by the six-point checklist set out in the 1989 Act.

The key elements that tend to be most relevant in these cases are the financial resources and the needs of the parties and the child, both now and in the foreseeable future, whether the child has a disability, the manner in which the child was being or was expected to be educated or trained.

In the current financial climate, a common question is whether a reduction in the paying parent's income would justify them reducing their child maintenance payments.

If maintenance is being paid through the CMS, they reassess maintenance annually or if income has changed by more than 25 per cent.

Otherwise, the existing calculation must continue to be paid.

If you are paying child maintenance under a court order, you can apply to a court to reduce your maintenance obligations or agree a variation with the other party. 

It would, however, be prudent to take legal advice before embarking on such an application and, if possible, to try to reach a temporary solution by agreement together.

However, it is important that any agreement is recorded in writing, so that it can be converted into a court order if necessary.

Property- TOLATA

If unmarried separating parties jointly own, or have both financially contributed to a property, then the court will be able to determine their respective interests in that property.

However, those interests, are determined by the laws of property ownership, which are restrictive. This is different from the position if the couple are married.

Property claims for unmarried couples are determined under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). This is like any other dispute between the co-owners of property.

The Act deals with agreements about the ownership of property. This is a complex area of the law with agreements being express, implied or deemed under the law relating to trusts by the court – it is therefore essential that specialist legal advice is obtained.