Unmarried parents, children and chequebooks

Cohabitation|Divorce|March 28th 2008

Some of the cases with which I become involved strike me as “entrapment”.

Following my comments about cohabitation, Mr. Justice Charles, a veritable Sir Lancelot in shining armour, rides to the rescue!

I am often asked to advise mothers who have not married their partners. They need to know the financial settlements they can expect for themselves and their children when cohabitation breaks down. The reasons why they have never married are varied.

In cases involving wealthy men, I have often found that the husband’s fear of paying a substantial divorce settlement is a key factor. Such men view themselves as open chequebooks. Yet they also want to have their fun. That usually includes an attractive woman and unprotected sex.

Some of the cases with which I become involved strike me as “entrapment”. I can recall one wealthy client, who had to confront a paternity suit from a Russian nightclub hostess after a one night stand. He had been wined and dined in a London club and, having drunk too much, had picked up the stunning looking woman. Following unprotected sex, the woman announced that she was pregnant – and paternity tests would later confirm that he was the father. This man was unlucky. Before the child was even born he was faced with the mother’s applications for housing, maintenance and capital.

My client wanted to protect himself against any future comebacks. He agreed to provide funds to enable mother and child to live in a modest house, that she would own, but on the basis that there would be no further claims against him – including child support. Any future claims would be offset against the equity in the house. The client decided to have no relationship at all with his child, and the matter ended peaceably. Perhaps in years to come, the child will wish to learn more about his millionaire father – and who would blame him?

In law, however, this type of “clean break” arrangement is far from typical.

The recent case of Moses-Taiga v Taiga, (MT-v-OT (2007) EWHC 838 (Fam)) in which Mr. Justice Charles delivered his customarily lengthy judgment, is a must-read for wealthy fathers and their partners.

In the judgment, Mr Justice Charles restated current law; in particular, that in cases involving wealthy parties, parties should have broadly comparable homes. He made the point that even if the father enjoyed greater financial resources than the mother, their children were entitled to be raised by both parties in circumstances that bore a relationship to the wealthier party’s current resources and standard of living.

This does not mean that in such cases, the mother would own the property. Instead it would be purchased by and owned by the father, and would revert back to him when the children became adults or finished their full time education.

Mr. Justice Charles added that the length and nature of the couple’s relationship was generally of little relevance. After all, a child born after a one night stand has the same needs and dependency as a child born after parents have cohabited for years.

For me, the most interesting part of the judgment is his examination of what is referred to as the “wife’s maintenance” in a case involving a married couple, and the “carer’s allowance” in a case involving a cohabiting couple.

How is the mother’s allowance as the children’s carer to be calculated? Mr. Justice Charles says that “a generous and broad brush approach” should be adopted. There is “an inevitable tension between a mother’s lack of personal entitlement and her entitlement as the children’s carer, which could be difficult to balance”. This is “particularly marked where the father is very wealthy”.

The court had to “recognise the responsibility and often the sacrifice of the unmarried parent. In order to discharge that responsibility the carer had to have control of a budget that reflected her position and that of the father, both social and financial.”

This is a pragmatic judgment, which sets out the law and demonstrates the willingness of the courts to make appropriate provision for children and their mothers.

What is still needed, however, is provision for cohabitants in their own right – not by proxy through a child. What if a couple splits up after their children have left home, or if they have no children? The woman can be left with no income, no capital and no pension except for the state one. The relationship could have left her at an economic disadvantage – but unlike a married woman, she would have no automatic entitlement to compensation.

I appreciate that, using what he had available to him in law, Mr. Justice Charles did what he could. We need specific law, so that cohabitants can put their relationship before the court in the same way that divorcing couples can.

If only we had a Sir Lancelot in government!

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(8)

  1. Jon Doe says:

    The Victorian days are over – women are competent, employable, liberated and have equal rights; which has contributed significantly to the demise of marriage as a successful institution. Creating bigger sticks to beat men who choose not to marry, primarily because of their lack of trust in the institution, serves only to fuel the demise of co-habitation. A more constructive and pragmatic approach might be to encourage marriage, by redressing the disproportionate and outdated settlements granted women in divorce cases.

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  4. Devanie says:

    Who is the artist that did the painting of Sir Lancelot? I would like to be able to get a print but can’t find info on the net.

    Loved your information that accompanied the art work. It was very eye opening.

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  6. Da says:

    I did a similar thing as this chap except it happened abroad with a Russian women. Nothing is being asked of me (yet) and the pregnancy is not far along. However, I would like to protect myself as best I can.

    What are my basic rights in light of the relationship being cross border? She is not a UK/EU national.

    • Marilyn Stowe says:

      Hi Da
      If she proceeds in England, she will make an application under Schedule 1 Children’s Act 1989. She could apply for a property for her and the child to live in until the end of the child’s minority or education, lump sum, child support and various sundries such as school fees etc. She can only succeed if you have the means to make this provision. Otherwise it’s usually child support – all depends on your financial position. Generally the court will want both parents to live similar lifestyles if possible for the benefit of the child.
      Regards
      Marilyn

  7. Sarah says:

    Hi Marilyn,

    After a seven year emotionally and violently abusive relationship with the father of my children which ended five years ago, I am still going through torture. Although now it’s financial torture. There is a huge huge gap between the lifestyle my children have with me 50% of the week.
    The childrens father is very wealthy and the children have luxuries upon luxuries but not love and support.
    My partner works full time and we struggle to eat sometimes. I have a 0 contract hours job, so there is no security there . We rent our house so feel there is little security here. This without a doubt is emotionally damaging my children before my very eyes. They are both anxious, falling behind in school. They don’t understand.
    I have never applied to the courts for anything as he intimidates me. He has slandered me as ‘mentally ill’ to all who will listen. I probably was quite mentally unwell due to the relationship, I am mentally well now, however the differing and contrasting life, as in Poor in my house but rich in his house?

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