What happens to children when cohabiting couples split up? Ex-judge STEPHEN GOLD explains

Stephen Gold:  The biological mother automatically has parental responsibility for the child, while the father can acquire it

Stephen Gold is a retired judge and author who has written popular series for This is Money on topics including how to be a successful executor, consumer rights and divorce

In part one of a new guide on cohabitation he debunked common myths, in part two he looked at legal agreements and in part three property rights. 

Today, he explains what happens regarding the children of cohabiting couples if they split up, and their inheritance rights.

When the relationship between cohabitees comes to an end, they have the same maintenance and other responsibilities and rights as separating spouses and civil partners, in relation to a child of whom they are the biological parents.

Maintenance payments will usually be dealt with by way of child support through the Child Maintenance Service, or by agreement.

Disputes about the welfare of the child – which parent they should live with, what contact they should have with the other party, where they should be educated and so on – can be resolved by the Family Court under the Children Act 1989, again in the same way as applies between separating spouses and civil partners.

The biological mother automatically has parental responsibility for the child. The father can acquire it by being registered as the father, or through the mother’s agreement or a court order.

Parental responsibility would give the father the same status as a married father or civil partner in relation to the child, but not the right to interfere with the child’s day to day care where it is the mother who is responsible for this.

In relation to a cohabitee who is not the biological parent of the other’s child, they could apply for a Children Act order if that child has lived with them for at least three years, or otherwise with the court’s permission.

It is quite conceivable that the bond they have formed with the child makes it in the child’s best interests that their relationship should continue in some form beyond the end of cohabitation.

Here comes the legal alert. Where one cohabiting party is not the biological parent of a child, they will not be under any legal obligation to maintain the child.

That applies even though the child was a member of the household, and treated by the cohabitee as their own child.

With a step-parent through marriage or civil partnership, the position is different as they can be required by court order to contribute towards the child’s maintenance on the basis they treated them as a child of the family.

Splitting up: Where one cohabiting party is not the biological parent, they will not be under any legal obligation to maintain children

A home when cohabitation ends

Consider this scenario. The biological parents of a child under 18 have cohabited and the relationship is over.

The parent with sole or some responsibility for the child’s care is in difficulty.

They are not entitled to a share of the sale proceeds of the home in which they lived or the proceeds would be paltry.

Their financial circumstances do not allow them to buy, rent or pay the expenses incidental to a move. Where can they look for help? 

The other parent.

The Children Act 1989 at schedule 1 enables them to apply for a lump sum of money against the other parent for the child’s benefit, even though they may derive some indirect benefit from the lump sum themselves.

This, for example, could be to put down the deposit on renting another property or to furnish or repair it.

A lump sum could even be ordered in other situations, as it has been in various cases which have been decided by judges, such as to pay for a child’s laptop, buy a car and to pay off debts.

Better still, the parent can apply for the other parent to provide a home for occupation by them and the child until the child attains 18 (or longer if there are special circumstances).

If the other parent could afford it, they could be ordered to buy another home or make available a second property they may own which was bought to let out.

The other parent could even be required, while the child was a minor, to make available the home which had been the family home during cohabitation, with them excluded.

Each case will depend on its particular facts. What is fair and reasonable in one case, may not be in another. Millionaires may be especially vulnerable to one of these orders.

What about tenancies?

Where the home in which cohabitees live is rented, then the court does generally have the power to order the tenancy agreement to be transferred over from one to the other.

It can do so whether the agreement is in the names of them both, or the name of only one of them.

It is not essential that the party seeking the transfer is caring for the couple’s child in order to secure the transfer but, if they are, it will strengthen their claim.

Should the tenancy be in the names of both parties, it is not unknown for one of them, usually out of spite, to give the landlord notice to quit.

That could be effective to lead to the tenancy coming to an end and so could scupper the other party getting the tenancy transferred into their sole name.

The solution? Seek an injunction from the court as part of the transfer application, to forbid notice to quit being given.

The court would need to be satisfied that there was good evidence to support the belief that notice to quit would otherwise be given against the applicant’s wishes.

Breach of the injunction would be a contempt of court, punishable by imprisonment.

You’re out!

It is also possible, particularly where one cohabitee has been subjected to domestic abuse by the other, for the victim to obtain from the court what is known as an occupation order under the Family Law Act 1996.

This can exclude the other party from the home so that the victim can live there in peace, with any child.

In less serious cases, the court may direct that one of the parties be restricted to occupation or use of only specified parts of the property.

The occupation order may be accompanied by a non-molestation order which protects the victim from violence, harassment and the like.

Destitute on death

We have already seen in part one how a cohabitee fails to score under the intestacy laws. These apply where the deceased did not make a will.

There is a remedy for the surviving cohabitee. It is available both where no will exists, and also where the deceased made a will but either completely left out the surviving cohabitee or made insufficient provision for them in it.

The remedy is a court application which relies on the Inheritance (Provision for Family and Dependants) Act 1975.

There is a limited class of eligible applicants. Among them is a person who lived in the same household as the deceased as if they were married or in a civil partnership – although not for at least two years before the death.

That would certainly cover a cohabitee so long as the two years have been clocked up.

Additionally eligible to apply is any person who was being entirely or partly maintained by the deceased immediately before their death.

This could have been by substantial cash payments or making accommodation available.

Retired judge and writer Stephen Gold 

Ex-judge Stephen Gold’s The Return of Breaking Law, published by Bath Publishing, is an irreverent guide to legal rights and winning in court or losing well. 

It gives more information on the topics covered in this series of articles and is full of tips and templates. 

Among the numerous other areas featured are consumer rights, financial remedies on divorce, succeeding on small claims, making a will, battling with sellers, creditors, domestic abusers, lenders and landlords – and how Stephen coped as lawyer to the Kray Twins.

If less than two years have been clocked up, the cohabitee may be able to qualify under this ground, as might someone who had been in a romantic relationship with the deceased without having cohabited with them.

A child can also apply – under 18 and over 18 – which means that the cohabitee could bring proceedings on behalf of themselves and an under-18 child of whom the deceased was the parent.

Proceedings under the 1975 Act have to be started within six months of the grant through the Probate Service of letters of administration.

The court has the power to extend the time limit but an extension is more likely to be refused than granted.

Mind you, in a 2019 case called Bhusate v Patel and other parties, a delay in starting proceedings of 25 years and nine months was overlooked.

However, the facts of the case were very exceptional. You could still say to your judge, ‘Mrs Bhusate got over 25 years. I only want 25 months’.

Win or lose?

Among the factors the court will look at are:

– The applicant’s resources and needs as well as those of anyone else who is claiming and all those who are due to inherit under a will;

– How much the deceased left

– Any physical or mental disability of anyone applying and those due to inherit;

– And other relevant matters which could include the applicant’s conduct or a promise by the deceased to see the applicant ‘alright’ which has been broken.

In the case of a will, it will consider whether any provision made in the will for the applicant was reasonable when the case is heard and, if not, what provision ought to be ordered.

The court, among other things, can award maintenance payments, lump sums or transfer a property.

The jointly-owned home

Remember what happens when someone owns a property with another as joint tenants. The deceased’s interest automatically passes on death to the other owner.

It is not available to be shared to the persons entitled to collect on an intestacy and a gift of it to another person in a will is ineffective.

So how does a cohabitee stand if, for example, the deceased owned a property with their former spouse and as joint tenants and that property is the only or main asset in their estate?

The court would have the power to claw back the property so that the deceased’s interest in it was available to fund some provision for the cohabitee.

SAVE MONEY, MAKE MONEY

Investing boost

Investing boost

5.09% on cash for Isa investors

Cash Isa at 5.17%

Cash Isa at 5.17%

Includes 0.88% bonus for one year

Free share offer

Free share offer

No account fee and free share dealing

4.84% cash Isa

4.84% cash Isa

Flexible Isa that now accepts transfers

Dealing fee refund

Dealing fee refund

Get £200 back in trading fees

Affiliate links: If you take out a product This is Money may earn a commission. These deals are chosen by our editorial team, as we think they are worth highlighting. This does not affect our editorial independence.