Managing trusts and tax

Publish date

24 September 2018

Making financial provision for children upon separation. Schedule 1 Children Act 1989

Couples living together have been the fastest growing family type. They also, unfortunately, make up just under half of all family breakdowns. The rights of couples living together on separation are very different from the rights of divorcing married couples; there is currently no specific legal protection for separating couples.

Parents are often shocked to discover that their only entitlement on separation is to child maintenance. There have been increasing calls for time-limited maintenance and other specific provision for parents to ensure their children’s needs can be met. Whilst legal reform is awaited, there are some other options available to parents on separation by way of the less known and used Schedule 1 of the Children Act 1989. Under this legislation, the court can make a number of orders, including:

  1. Lump sum orders for children under 18, for the expenses incurred looking after. a child, such as clothing, transport or equipment. There is no limit to the number of lump sums a parent can apply for
  2. Provision of property for minor children, such that a property is either purchased by one parent for the occupation of the other and the children or a property is transferred from one parent to the other for use until the children are 18 or have finished secondary education
  3. Maintenance above the Child Maintenance Service assessment, to ‘top up’ maintenance beyond the maximum CMS assessment where gross salary exceeds £156,000 per annum
  4. Maintenance for nursery fees and ongoing educational expenses (e.g. school fees).

Claims can also be made under Schedule 1 for one parent to fund the cost of court proceedings on behalf of the other, where appropriate, so as not to prevent people access to the court where needed.

It must be remembered that claims under Schedule 1 are made for the benefit of the child and not the parent. It is therefore the needs of the children which is the court’s priority, whilst also assessing the financial circumstances of both parents to determine whether any provision is appropriate. This means that it is likely that an order for the transfer of property to one parent or for the purchase of a property for that parent, is likely to return back to the parent who provided it once the children are no longer minors.

Whilst parents are encouraged to try and resolve these matters amicably and outside of court, such as in mediation, sometimes there is no option but to start court proceedings. The prospects of such an application should be considered carefully before those steps are taken and so it is always recommended that the appropriate legal advice would be sought.

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