Having children as cohabitanting parents:

Having children as cohabitanting parents: what are you and your child's rights?

Having children as cohabitanting parents: what are you and your child's rights?

With the stigma of having children out of wedlock eroding and cohabitation rising in popularity, it is no surprise that more and more children are being born to cohabiting unmarried parents. In 2008, The Institute of Fiscal Studies estimated that up to 30% of all live births in England and Wales were to cohabiting parents, a threefold increase from forty years ago. Yet despite its prevalence, cohabitants may be unclear on the rights of their children and themselves, as well as how their position may differ from that of married parents.

 

My partner and I have a child. Are we both the child’s legal parents?

This is the key difference between cohabitation and marriage. The woman who gives birth to the child is automatically the child’s legal mother, regardless of marital status. She also has parental responsibility, meaning she has the legal right to make decisions regarding the child’s upbringing. However, while the man married to the woman who gives birth is presumed to be the legal father, an unmarried father does not automatically acquire parental responsibility. A cohabitating man who fathers a child can only acquire parental responsibility if he is registered as the father on the birth certificate, has entered an agreement with the mother, or following a court order. Because of this, cohabiting couples should consider appointing a guardian for their child should anything happen to the mother or parent with parental responsibility.

 

I had a child with my boyfriend/girlfriend and we used to live together. We have since broken up – does my ex have to pay child support?

In short, yes. If your child lives with you and you are seeking periodical payments for him or her, this falls under the statutory duty of the Child Maintenance Services (CMS) under the Child Support Act 1991. It is important to note that this is a government service that can only be enforced by the CMS, not the court. For a fee, the CMS can help you and your ex-partner calculate the amount of child maintenance payable and enforce the payments if your ex-partner refuses to pay. You and your former partner also have the option not to use the Child Maintenance Services and can privately agree on child maintenance, although you must remember that this will be more difficult to enforce as these arrangements are non-binding.

If you require child support in the form of lump sum payments or the transfer of property, this is governed by the court under Schedule 1 of the Children Act 1989, not the CMS. The court will take into account factors such as the child’s financial needs, parents’ income and the way the parents were intending the child to be educated in order to determine the amount of child maintenance payable. While child welfare is not a factor on the checklist that the court has to consider in a Schedule 1 application for child support, it is well established that a child’s welfare has an important role to play in the court’s determination. As Lord Justice Thorpe stated in Re P (Child: Financial Provision) [2003], welfare must be “a constant influence on the discretionary outcome”. Cohabiting parents should thus rest assured that the court will have the child’s best interests at heart when determining child support.

 

Key takeaways

The legal system is generally flexible when it comes to matters concerning children, and actively avoids disadvantaging children based on their parents’ relationship status. This is to ensure that all children are financially provided for as much as practically possible.  The difficulty with the status of cohabitants is therefore not so much how this affects children, but rather how it affects adults. As explained in LexSnap’s blog post on the legal rights of cohabitants and the common law marriage myth (https://www.lexsnap.com/blog/2018-07-23-rights-of-cohabitants-the-common-law-marriage-myth), and as seen in the lack of automatic parental responsibility for unmarried fathers, the law does not view cohabitation as being equivalent to marriage. It views cohabitating adults as autonomous decision makers who have chosen this type of relationship over marriage, and thus differentiates their legal rights accordingly. 

For more information on the legal rights of cohabitants and their children, visit LexSnap’s website under the Child Maintenance and Cohabitation sections (https://www.lexsnap.com/pack/ch-new-maintenance-and-other-financial-provisions).

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