The cohabiting family
Outcomes:
1. Identify the similarities and differences between the legal position of a cohabiting family and
married couples/ civil partnerships.
2. Draft key documents required to enable cohabiting couples to avoid future disputes.
3. Advise a parent on the issues of changing a child’s surname.
4. Identify the appropriate remedies available to address financial disputes between cohabitants
and assess the likely outcome.
Financial provisions for children
Maintenance under the Child Support Act 1991
• The court no longer has jurisdiction to make child maintenance orders in the majority of cases. The CMS
are primarily responsible for dealing with most cases.
• CMS have jurisdiction whether the parents are married or unmarried
Can make a maintenance calculation only if the parents are no longer living together
• Can be made in favour of children under 16 years of age and under 19 who are still in full-time education.
• Court are involved for maintenance for step-children and children over the age of 19 who are still in full-time
education.
Maintenance and lump sums during marriage
• A married parent can apply during the marriage for a maintenance order and lump sum order of up to
£1,000 for a child of the family from the other parent. This is done using the DPMCA 1978 or s.27 MCA
1973. However, the CMS primarily deal with child maintenance.
Financial relief under the Children Act 1989
s.15 and schedule 1
of the Children Act 1989 enable a parent, guardian, anyone with a residence order in their favour or a child to apply
for the following orders against one or both parents of a child:
(a) periodical payments to the applicant for the benefit of the child, or to the child direct
(b) Lump sum to the applicant for the benefit of the child, or to the child direct
(c) settlement of property for the benefit of the child
(d) transfer of property to the applicant for the benefit of the child, or child directly.
If the child lives abroad with one parent and the other parent lives in the UK, the court can make orders for
periodical payments only.
In deciding whether to exercise its powers under s.15 and schedule 1, the court shall have regard to the
following circumstances: para 4(1) schedule 1
(a) The income, earning capacity, property and other financial resources which each person has or is likely to
have in the foreseeable future.
(b) The financial needs, obligations and responsibilities which person has or is likely to have in the foreseeable
future
(c) The financial needs of the child
(d) The income, earning capacity, property and other financial resources of the child
(e) Any physical and mental disability of the child
(f) The manner in which the child was being, or was expected to be, educated or trained.
, Home ownership- beneficial interests
Cohabitation agreements
Formalities Contract principles:
1. Undue influence- needs to show the agreement is not unduly favourable
to one party and that the parties must have entered into it free from undue
influence of the other party, following independent legal advice.
2. Intention to create legal relations- in domestic situations there is a
rebuttable presumption that the parties did not intend to create legal
relations by entering into a contract. But not difficult to rebut the
presumption where the parties have had separate legal advice and have a
signed agreement.
3. Certainty- the terms must be clear, concise and not lack certainty
otherwise they may not be enforced.
4. Consideration- any potential problem arising from a failure of
consideration can be avoided by making the agreement a deed.
Þ Cohabitation agreements are likely to be binding following all of the
contractual requirements have been met.
Þ Solicitor should ensure both parties have independent legal advice
Þ Domestic arrangements are trivial and detract from the gravity of the
agreement.
Matters to be covered in the (a) Ownership of real and personal property
agreement (b) Finances- bills and ownership of joint accounts
(c) Children- maintenance and their surnames
(d) Other matters that may be personal to the parties.
Things to check/ amend in an
agreement (fact specific) • Recital of independent legal advice
• Tenants in common if there is inequality in the contribution. JT when there
has been equal contribution.
• Check the terms would be suitable for all parties
• Numbering formalities- (i)
• Remove any clauses that are trivial and take away from gravity of the
agreement
• Remove any clauses that seek to oust the court’s jurisdiction to make and
review s.8 order/applications
• Ensure it has been signed as a deed
Enforceability of cohabitation Sutton v Mischon De Reya- whilst there has been no specific case law on the
agreements enforceability, this case highlights that cohabitation agreements are not contrary to
public policy.
As long as there were certain terms, an intention to create legal relations, free
from undue influence and there was independent legal advice sought
Outcomes:
1. Identify the similarities and differences between the legal position of a cohabiting family and
married couples/ civil partnerships.
2. Draft key documents required to enable cohabiting couples to avoid future disputes.
3. Advise a parent on the issues of changing a child’s surname.
4. Identify the appropriate remedies available to address financial disputes between cohabitants
and assess the likely outcome.
Financial provisions for children
Maintenance under the Child Support Act 1991
• The court no longer has jurisdiction to make child maintenance orders in the majority of cases. The CMS
are primarily responsible for dealing with most cases.
• CMS have jurisdiction whether the parents are married or unmarried
Can make a maintenance calculation only if the parents are no longer living together
• Can be made in favour of children under 16 years of age and under 19 who are still in full-time education.
• Court are involved for maintenance for step-children and children over the age of 19 who are still in full-time
education.
Maintenance and lump sums during marriage
• A married parent can apply during the marriage for a maintenance order and lump sum order of up to
£1,000 for a child of the family from the other parent. This is done using the DPMCA 1978 or s.27 MCA
1973. However, the CMS primarily deal with child maintenance.
Financial relief under the Children Act 1989
s.15 and schedule 1
of the Children Act 1989 enable a parent, guardian, anyone with a residence order in their favour or a child to apply
for the following orders against one or both parents of a child:
(a) periodical payments to the applicant for the benefit of the child, or to the child direct
(b) Lump sum to the applicant for the benefit of the child, or to the child direct
(c) settlement of property for the benefit of the child
(d) transfer of property to the applicant for the benefit of the child, or child directly.
If the child lives abroad with one parent and the other parent lives in the UK, the court can make orders for
periodical payments only.
In deciding whether to exercise its powers under s.15 and schedule 1, the court shall have regard to the
following circumstances: para 4(1) schedule 1
(a) The income, earning capacity, property and other financial resources which each person has or is likely to
have in the foreseeable future.
(b) The financial needs, obligations and responsibilities which person has or is likely to have in the foreseeable
future
(c) The financial needs of the child
(d) The income, earning capacity, property and other financial resources of the child
(e) Any physical and mental disability of the child
(f) The manner in which the child was being, or was expected to be, educated or trained.
, Home ownership- beneficial interests
Cohabitation agreements
Formalities Contract principles:
1. Undue influence- needs to show the agreement is not unduly favourable
to one party and that the parties must have entered into it free from undue
influence of the other party, following independent legal advice.
2. Intention to create legal relations- in domestic situations there is a
rebuttable presumption that the parties did not intend to create legal
relations by entering into a contract. But not difficult to rebut the
presumption where the parties have had separate legal advice and have a
signed agreement.
3. Certainty- the terms must be clear, concise and not lack certainty
otherwise they may not be enforced.
4. Consideration- any potential problem arising from a failure of
consideration can be avoided by making the agreement a deed.
Þ Cohabitation agreements are likely to be binding following all of the
contractual requirements have been met.
Þ Solicitor should ensure both parties have independent legal advice
Þ Domestic arrangements are trivial and detract from the gravity of the
agreement.
Matters to be covered in the (a) Ownership of real and personal property
agreement (b) Finances- bills and ownership of joint accounts
(c) Children- maintenance and their surnames
(d) Other matters that may be personal to the parties.
Things to check/ amend in an
agreement (fact specific) • Recital of independent legal advice
• Tenants in common if there is inequality in the contribution. JT when there
has been equal contribution.
• Check the terms would be suitable for all parties
• Numbering formalities- (i)
• Remove any clauses that are trivial and take away from gravity of the
agreement
• Remove any clauses that seek to oust the court’s jurisdiction to make and
review s.8 order/applications
• Ensure it has been signed as a deed
Enforceability of cohabitation Sutton v Mischon De Reya- whilst there has been no specific case law on the
agreements enforceability, this case highlights that cohabitation agreements are not contrary to
public policy.
As long as there were certain terms, an intention to create legal relations, free
from undue influence and there was independent legal advice sought
