Although the myth of ‘common law marriage’ persists, on separation cohabitants do not have the same entitlement to a fair share of the assets, or financial support, than those who are divorcing. Instead, separating cohabitants will generally only be eligible to a share of the assets that they actually jointly own with their former partner, such as the family home. However, they would not have any claim to the other’s pension, income, savings etc.
This can mean that on separation one of the cohabitants can be left in a very precarious financial situation, particularly if they do not jointly own the family home. Even when the parties do own the family home together, they can still find themselves in a difficult situation because the law presumes there should be sale of the property. This may well not be suitable, particularly when there are young children.
Helpfully, in these situations there is a piece of legislation called Schedule 1 of the Children Act which allows a cohabitant with children to apply for:
- A lump sum payment or series of lump sums;
- To be allowed to remain in the property with the children;
- A transfer of the property into the name of the cohabitant who has the children living with them.
This therefore means that in a situation where one of the cohabitants (usually the woman) does not jointly own the property, but has children, then they can request that they be allowed to remain living in the family home either on a permanent basis (i.e. a transfer into their name) or more usually that they may remain there until the youngest child reaches 18.
Cases regarding Schedule 1 applications have made the headlines in recent years when they have involved famous football players who have fathered children after a one night stand. The footballers have then found the Courts making orders that they must support not only the child, but also the mother, and generally to a very good standard in order that the child does not see a significant disparity in their parent’s standard of living.
However, Schedule 1 cases are not just for the rich and famous. Instead, they are suitable for most separating cohabitants where the party with the children needs financial support.