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Despite it being the year 2021, financial claims when parties separate are very different depending upon whether you are married or cohabiting.

Financial claims for Married Couples 

When a marriage breaks down and the parties divorce, financial provision is dealt with under the Matrimonial Causes Act 1973. Section 25 sets out the criteria that the courts must apply when dividing the pot. Under this statutory provision the courts have a very very wide use of discretion, irrespective of whose name the assets are held in. No distinction is made between a breadwinner and a homemaker in terms of financial claims.

Many financial claims will be based on “need”. Financial orders include capital payments (lump sums), income order (spousal maintenance), transfer of homes (property adjustment order) and orders providing for pensions to be shared.

The courts will look at the size and makeup of the financial pot and then apply the statutory criteria as to how that is to be divided. The first regard is for the welfare of any child under 18 years/in full-time education.

Financial claims for Cohabiting Couples

In stark contrast, there is no “right” to share a proportion of the pot if you are not a co-owner. There is no right to share in income/any ability to make income claims between the parties. This applies irrespective of how long you have been together. If you cohabit in a house owned by the other party, you potentially could be in a very vulnerable position financially at the end of the relationship.

You can to bring claims via the court under the Law of Property Act 1925 and TOLATA 1996. It is possible for the courts to look at significant monetary contributions. It would however have to be significant in terms of the amount spent leading to an increase in value.

Does the position change where children are concerned?

In terms of the application of the strict laws of the property, the answer is no. However, it may be possible to bring financial claims under Schedule 1 of the Children Act 1989 but that largely is dependent upon the wealth of the other party. By way of example, you could bring a claim for the other party to pay university fees and associated costs. Subject to the wealth involved, there are also scenarios whereby properties can be purchased in order to enable the child/children to live in. It is however held on trust until the child/children reaches 18 or finishes full-time education and then at that point the property reverts to the person who purchased it. At that point you could then be left in a vulnerable position having to look to rehouse with limited funds to do so.

Child Maintenance

This is now dealt with by the Child Maintenance Service. The service assesses what child maintenance is to be paid using a formulaic approach. Where you have wealthy parents who will be paying the child maintenance the courts do have the ability to “top up” an award made by the CMS as they will work on a maximum figure when applying their formulaic approach. This, on occasions, maybe less than the child needs.

Conclusion

In order to protect yourself upon any marriage breakdown, it is important that you get the correct legal advice with full disclosure and an assessment of what assets there are to enable them to be shared moving forward to provide for children’s financial needs and also that of the parties.

When you are living together, or contemplating living together, it is important that you protect yourself as much as possible. Are you for example contributing to a deposit of a property that will not be in your name? This needs to be fully recorded at the point of purchase. Will you be contributing to household bills and improvements to the property despite it not being in your name? All this can be documented and regulated in a Cohabitation Deed.

For advice on financial claims with regards to separation, divorce and cohabiting couples please contact our Family and Matrimonial Team. Call Lesley Smythe on 01244 354813 or email her at Lesley.smythe@dtmlegal.com

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