When an unmarried couple with children separates, there is no formal divorce process to follow. However, there may still be important decisions to make about where the children will live, how they will spend time with each parent, financial support and the family home.
The legal position for unmarried couples is different from the position for people who are married or in a civil partnership. Having children together does not give unmarried partners the same financial rights as spouses or civil partners, even if they have lived together for many years.
The key issues to consider after separation
For many parents, the immediate priority is making arrangements that work for their children. This may include day-to-day care, school routines, holidays, handovers and how each parent will stay involved in important decisions.
You may also need to consider:
- Child maintenance and everyday financial support
- The family home or other property
- Savings, debts and household bills
- Parental responsibility
- Whether you can reach an agreement without going to court
- Whether you need advice about a specific disagreement
Some of these issues are closely connected in day-to-day life. Legally, however, arrangements for children, child maintenance and property can be dealt with separately.
Making arrangements for your children
Parents can agree how their children will be cared for after separation without a court order. Arrangements may cover where a child lives, the time they spend with each parent and practical matters such as school holidays, birthdays, travel and communication.
GOV.UK refers to these decisions as child arrangements. It also confirms that parents may be able to agree where children live, how much time they spend with each parent and how they will be financially supported without going to court.
A clear arrangement can help provide consistency for children at a time of change. It may be useful to record what has been agreed, particularly where arrangements are detailed or likely to change over time.
Keeping the focus on your child
The arrangements that work best will depend on your child’s age, needs, routines, relationships and the practical circumstances of the family. It can help to think about:
- Where your child will spend school nights
- How weekends and school holidays will work
- Travel and handover arrangements
- How parents will communicate about school, health and activities
- Contact with siblings, grandparents and other important people
- How changes to arrangements will be discussed
Children may have their own views and feelings about the changes taking place. Government guidance for separated parents encourages adults to listen to their children without asking them to choose between parents.
What if parents cannot agree?
Some disagreements can be resolved through discussion, mediation or another form of non-court dispute resolution. Where agreement is not possible, one parent may apply to the family court for a child arrangements order.
A child arrangements order can set out where a child lives and who they spend time with. Before applying, parents will usually need to show that they have considered mediation, unless an exemption applies.
If the court is asked to decide, the child’s welfare will be the most important consideration. There is no automatic outcome based on whether a parent is a mother or father, who moved out of the home or who started the court process.
For more information, read our guide to child arrangements.
Child maintenance is separate from contact arrangements
Child maintenance is financial support for a child’s everyday living costs when parents do not live together. Both parents remain responsible for supporting their child financially, even if one parent does not see the child.
Child maintenance and time with a child are separate issues. A parent should not be prevented from seeing a child because of a disagreement about maintenance. Equally, a parent’s contact arrangements do not remove their responsibility to contribute financially.
Parents may agree a private arrangement between themselves or use the Child Maintenance Service. The amount of maintenance can be affected by factors including income and the number of nights a child stays with each parent.
Parental responsibility after separation
Parental responsibility means having legal rights and duties relating to a child’s upbringing. It includes matters such as providing a home, education, medical treatment, naming and looking after a child’s property.
A parent who has parental responsibility but does not live with their child does not automatically have a right to spend time with them. However, they should be involved in important decisions about the child’s life.
Whether an unmarried father has parental responsibility depends on the circumstances. For example, a father may have it if the birth was jointly registered with the mother. If parental responsibility is not already in place, it may be possible to apply for it.
What happens to the family home?
Property can be one of the most difficult issues for unmarried couples after separation. The outcome may depend on how the home is owned, whose name is on the title, contributions made towards the purchase or mortgage and the evidence available about the couple’s intentions.
Unmarried couples do not have the same legal rights to divide money and property as divorcing spouses or civil partners. There is also no legal status of ‘common law marriage’ in England and Wales, regardless of how long a couple has lived together or whether they have children.
This does not necessarily mean that the person whose name is not on the property title has no interest in it. However, the legal position can be complex and will depend on the facts.
You may need to consider:
- Whether the property is owned jointly or in one person’s sole name
- The deposit and mortgage contributions made by each person
- Payments towards major improvements or renovations
- Any written agreement about ownership
- Whether there are other properties, investments or assets involved
- The housing needs of the children
Our property disputes for unmarried couples page explains this issue in more detail.
Can one parent make a financial claim for a child?
Child maintenance is intended to meet a child’s everyday living costs. In some cases, there may also be financial provision available for a child under Schedule 1 of the Children Act 1989.
The court has powers under Schedule 1 to make orders for financial provision for children, including periodical payments, lump sums and, in some situations, property-related provision for a child’s benefit.
This is a complex area of law. The available options will depend on the child’s needs, the parents’ resources and the circumstances of the family. It is important not to assume that the same financial arrangements available on divorce will apply to unmarried parents.
What practical steps can you take?
- Focus on immediate arrangements for your child
Consider where your child will stay, their school routine, handovers and how they will spend time with both parents. - Keep clear records of financial and property information
Gather documents relating to property ownership, mortgages, savings, debts, household expenditure and child-related costs. - Try to communicate clearly where it is safe to do so
A written record of practical arrangements can reduce misunderstandings and make it easier to identify the points that still need to be agreed. - Get advice before making major decisions
This can be especially important before selling a property, changing a child’s school, moving away or agreeing long-term financial arrangements. - Seek urgent support if there are safety concerns
If you believe that you or your child is in immediate danger, contact the emergency services. If there are concerns about domestic abuse, child protection or a child being taken abroad, obtain legal advice promptly.
How NLS can help
Separation can raise questions about children, property and finances at the same time. NLS can help you understand the issues that may need to be addressed, consider your options and prepare for the next stage.
