Unmarried financial disputes

Where you and your ex-partner live in a property that is jointly owned by you, in joint names, it’s likely that one of you will need to buy the other out of their share, or the property will be sold and the proceeds of sale divided between you. If you signed a declaration of trust when you bought this property, this may set out the mechanism for buying out shares or the sale of the property. Where a property is owned by only one of you, the other does not have any legal or beneficial interest in the property simply by having lived there, regardless of the length of your relationship. There is legislation (the Trusts of Land and Appointment of Trustees Act 1996, or TOLATA) which may be able to assist in establishing a financial interest in a property. For example, where you have invested money into the property by way of funding renovation works, reducing the mortgage balance or contributing to the deposit, you may be able to demonstrate that you have a financial interest in the property. Alternatively, if you were promised a share in the property and then made a financial contribution on the basis of the promise, it may be possible to prove a financial interest that way.

Firstly, your ex-partner will need to pay child maintenance for the children if they are to remain living with you. We explain this all on our arrangements for children page. In addition to this, Schedule 1 of the Children Act 1989 sets out additional provision. You can apply to the court for various financial orders to be made. Those claims must be for the benefit of your child only. The court can order:

• Additional child maintenance, if your ex-partner is a high earner (this means earning over £156,000 per year before tax)
• Provision of a property to meet your child’s housing needs until he or she finishes full time education
• Lump sum orders to meet your child’s additional financial needs, e.g. for a school trip or a new computer for your child’s schoolwork.

Such needs can be more widely interpreted to provide, for example, a car for you to use if it is essential for your child’s education or wellbeing, or discharge of debts if to do so would be of indirect benefit to your child.

If you are making an application under Schedule 1 of the Children Act 1989 (see above), the court can order that your ex-partner is to contribute to your legal costs. This can apply to your historic and future costs. However, if you are making an application about the ownership of a property (under the Trusts of Land and Appointment of Trustees Act 1996), you should be aware that this is deemed to be a civil claim, rather than a family claim. This means that different costs rules apply and, if you are unsuccessful in achieving the outcome sought, you could be ordered to pay your ex-partner’s costs. If you are successful, you may recover some, but not all, of your costs from your ex-partner. It’s important therefore to take early legal advice and consider negotiations and mediation before embarking on a court application.

Ordinarily, the Child Maintenance Service (CMS) is the first and last stop for determining child maintenance. The Family Court has very limited power to make otherwise make an order that your ex-partner should pay child maintenance. There are some exceptions though, as follows:

• If either you or your ex-partner normally lives outside England and Wales, the court will have sole responsibility for assessing child maintenance and can make such an order as they see fit – they are not bound by the normal CMS rates
• If your ex-partner earns more than £156,000 per annum (before tax), the court can make a ‘top up’ order. This means that your ex-partner will pay the amount of child maintenance assessed by the CMS and also an extra amount assessed by the court. The amount will be determined against your ex-partner’s resources and your child’s needs.
• If you are seeking an order that your ex-partner pays for your child’s school fees, or other expenses associated with your child’s training or education, the court can order further payments (referred above as lump sum payments)
• If your child is disabled, and has additional costs as a result, the court can order your ex-partner to make additional payments in addition to CMS assessed child maintenance
• Ordinarily, child maintenance assessed by the CMS end when your child finishes full time education. If your child remains in education after the age of 19, or there are special circumstances, such as additional training or education resulting from a disability, then the court can order for the maintenance to continue for a longer period