What rights do unmarried couples with children have in the UK?
Unmarried couples with children in the UK have clear legal rights regarding their children. The law in England and Wales does not distinguish between married and unmarried parents when it comes to post-separation child arrangements. But when it comes to finances and property, the gap is significant.
Parental responsibility, child arrangements, and child maintenance/additional financial support for the children can all be addressed formally, (through the courts or the Child Maintenance Service (CMS), depending upon the issues and circumstances). What you cannot do – without being married or in a civil partnership – is make claims against your partner’s pension, seek spousal maintenance, or rely on automatic inheritance rights.
What should you do first when an unmarried couple with a child splits up?
When a relationship ends and children are involved, the early decisions often matter most. You may be dealing with a lot at once – where the children will sleep tonight, who pays what, and what rights you actually have. Knowing what to prioritise, and in what order, can make a real difference.
1) Agree interim child arrangements
Before anything else, try to put a temporary arrangement in place for where the children will live and how they will spend time with each parent. This doesn’t need to be legally formal or permanent – it simply gives the children stability while longer-term decisions about housing and finances are worked through. Even an informal written plan is better than leaving things uncertain.
Check out our parenting plan guide to help you when putting arrangements in place.
2) Open a CMS case as soon as possible
Child maintenance through the Child Maintenance Service cannot be backdated to the date of separation. It is only calculated from the date of your initial application. If you are the primary carer and need financial support, applying early protects your position. You can use the CMS online calculator to get an estimate of what may be payable. Any delay in starting this process means support for that period is simply lost.
However, sometimes, parents may wish to agree to deal with the child maintenance payments privately between them, which is perfectly acceptable, but leaves limited recourse if payments are missed. Whether a formal CMS application is made or not, the CMS online calculator is still a useful tool for understanding the minimum amount which should be paid.
This is caveated for circumstances where a paying party earns more than £156,000 per annum – legal advice should be sought in these circumstances as you may need to apply for a “top-up” (see below).
3) Book a MIAM before you consider going to court
If you and your co-parent cannot agree on child arrangements, you will generally be required to attend a Mediation Information and Assessment Meeting (MIAM) before making any application to the family court. This requirement is now strictly enforced unless you have an exemption, for example, where there is a history of domestic abuse, but they are specific and must be evidenced.
A MIAM shouldn’t just be treated as a tick-box exercise as a prerequisite to a court application. It can be an extremely informative appointment about a range of non-court dispute resolution (NCDR). In many cases, a form of NCDR would be the better way to resolve the child arrangements as it can be cheaper, quicker, and more amicable.
Who gets custody of a child when an unmarried couple splits up?
The word ‘custody’ is no longer used in English family law. Since the Children Act 1989, courts instead make Child Arrangements Orders, which set out with whom a child lives and spends time. People will sometimes use the term ‘custody’ as it is still the concept used in the United States, but it is not used in England and Wales.
The court’s overriding principle is straightforward: The welfare of the child is paramount. There is no presumption in favour of mothers or fathers, it simply comes down to what is in a child’s best interests.
Ideally, parents would reach their own arrangements without going to court. However, if you and your ex-partner cannot agree, the MIAM is your first required step. If the matter does reach a judge, the court will consider a wide range of factors from the Welfare Checklist. This includes:
- The child’s wishes (depending on their age and understanding)
- Their emotional and physical needs
- Any risk of harm
- The likely effect of any change in their circumstances
How can unmarried parents secure financial support for their children?
There are two main routes for securing financial support for children after separation: The Child Maintenance Service (CMS) and Schedule 1 of the Children Act 1989.
When unmarried couples separate, neither partner can claim spousal maintenance, a share of the other’s pension, or general financial relief from the other – regardless of how long they lived together. Any financial claims that arise are made for the benefit of the child, not as support between the parents.
Child Maintenance Service
The CMS is the government body responsible for calculating and, where necessary, enforcing child maintenance payments. Both parents are legally responsible for the cost of raising their children, regardless of whether they were ever married.
CMS payments are not backdated to the date of separation, and maintenance only starts from the date of your initial application. Therefore, if you are the primary carer, opening a case as soon as possible is one of the most practical steps you can take. You can use the CMS online calculator to estimate what may be payable.
If the paying parent earns more than £3,000 per week gross (approximately £156,000 per year), the receiving parent may apply to the court for additional ‘top-up’ maintenance above the CMS ceiling. Payments usually continue until the child turns 18, or until they complete approved education or training.
Schedule 1 of the Children Act 1989
Schedule 1 of the Children Act 1989 gives the court the power to order financial provision for your child’s benefit and is mostly used in cases where the parents were never married, or there is a distinct gap in income between the parents.
The court can order a range of financial provision for a child’s benefit: Lump sums, regular payments, and in some cases a property order requiring that a home be made available to the child and their primary carer for the duration of the child’s dependency (even where the other parent is the sole legal owner).
The carer gains no permanent ownership stake – the arrangement exists solely to meet the child’s needs. Schedule 1 can also cover childcare costs that help the primary carer return to work.
Martha Holland, Senior Associate at our family law office in Chelsea, says:
“Not every case will be suitable for Schedule 1, most people will obtain financial provision for their children via the Child Maintenance Service and/or agreement between the parents. It is important that in considering a Schedule 1 claim, that there is a demonstrable need of the child requiring the additional financial relief.
“Therefore, these claims can be particularly useful in circumstances where there are children with disabilities for example, with treatment/equipment which comes as a cost beyond typical childcare expenses. However, it will also need to be affordable for the paying parent, and financial disclosure will be an important element of the process to ensure that any award made can in fact be met.
“Claims under Schedule 1 can be tricky, and there is a risk of adverse costs awards, so it is important to obtain legal advice well in advance of an application.”
What happens to the family home when an unmarried couple splits up?
The answer depends on whose name the property is in. If the home is in one partner’s name only, the other partner has no automatic right to remain or to a share of its value – regardless of how long they lived there. This is different to the position of a married couple, where matrimonial home rights apply.
The non-owning partner may be able to evidence a beneficial interest in the property to the courts, which could provide them with a share in the property. For example, where they contributed to the deposit, made mortgage payments, or paid for significant improvements, and where there was a shared understanding that they would have a share. Claims of this kind are made under TOLATA.
If the home is owned jointly, both partners have legal rights in the property. Disputes then centre on the respective shares and what happens next – whether the property is sold, transferred, or retained by one party. Where children are involved, Schedule 1 and TOLATA claims often need to be considered together, as the needs of any children will be significant.
For a full breakdown of the options, see our guide to cohabitation property rights.
How is property dealt with after separation?
Knowing what happens to the joint mortgage when you separate but aren’t married can be confusing. Separating does not usually remove either person from a joint mortgage. Both borrowers remain liable to the lender until the property is sold, one person’s name is removed, or the mortgage is formally changed. This is true regardless of any private agreement between you, or who continues to live in the property.
The main options for dealing with a joint mortgage after separation are:
- Buy out your partner/ transfer of equity: One person pays the other their share of the equity and takes on the mortgage in their sole name. This requires the lender’s consent and a new mortgage assessment
- Sell the property: The mortgage is repaid from the sale proceeds, and any remaining equity is divided between you
- Defer the sale: Where children are living in the property, the courts can order a deferred sale – allowing the resident parent and children to remain until the child reaches a certain age or finishes education. However, this is fact specific and the court ideally like to avoid this where possible, given it is quite onerous on the co-owner which is not in occupation
If you have a new partner, in England and Wales, that new partner’s income and assets are not treated as yours, and your ex cannot make a direct financial claim against them or seek maintenance from them.
That said, if your household finances change significantly with them moving into your home, for example, it may be a relevant factor in child-related contexts. How much weight is given to this will depend on the specific facts and the type of arrangement in place. If this is a concern for you, our guide on whether an ex can claim money from a new partner covers this in more detail.
How do cohabitation rights differ from marriage?
For unmarried parents, the legal picture extends beyond children. Cohabiting partners in England and Wales have considerably fewer rights than married couples or civil partners – and that difference matters, particularly when a relationship ends.
Our guide on cohabitation law and the rights of unmarried couples explains what that means in practice.
How can a solicitor help?
Separation is rarely simple, and when children are involved, the stakes feel higher still. A solicitor with experience in cohabitation and family law can help you understand what you are actually entitled to – and what is worth pursuing. This might mean:
- Helping you establish and agree interim child arrangements quickly
- Advising on whether a Schedule 1 claim is appropriate for your circumstances
- Assisting with TOLATA claims if there is a dispute about the family home
- Advising on how Schedule 1 and TOLATA can be run together to protect your child’s housing
- Representing you if matters cannot be resolved by agreement
For many unmarried parents, the reality of what the law does, and does not, provide only becomes clear when a relationship ends. Taking advice early, before decisions become urgent, gives you the best chance of protecting both yourself and your children.
If you need advice on your specific circumstances, you can reach out to our family law team to find out more.
Keep reading…
What rights do cohabiting couples have on inheritance?
Cohabitation agreement or declaration of trust: What’s right for me?
