SCHEDULE 1 CLAIMS
These claims exist to ensure the financial provision of the children of cohabitating couples in the event of the relationship breaking down.
In the eyes of the law, cohabitating couples, i.e. those who live together but who are not married, do not have claims against each other as a result of their relationship. This can make matters less straightforward for unmarried couples who have children, when it comes to child arrangements and the financial provision of their dependants in the event of their relationship breaking down.
The only claim that couples who cohabit have in this situation is for child maintenance. This is calculated by the Child Maintenance Service (CMS) in accordance with a fixed formula (there is an online calculator available on the CMS website so you can check your entitlement).
Making a Schedule 1 Claim.
Schedule 1 Claims are made in accordance with Schedule 1 to The Children Act 1989, which is in place to ensure that children of unmarried couples are not disadvantaged financially following the end of their parents’ relationship.
These claims allow the Court to address some of the financial needs of the dependant children of cohabitating couples, for example particular schooling or housing needs.
Who can make a Schedule 1 Claim?
For a schedule 1 order to be made there must be a connection between the child and the respondent. This connection must either be biological or by reference to the respondents married or civil partner status.
A claim for financial provision on behalf of the child under Schedule 1 can be commenced by any one of the following people:
– a parent;
– a guardian;
– a special guardian; or
– any person that has a residence order in respect of a child
What powers do the Courts have?
The Court has discretionary powers and uses them by reference to Section 4(1) of Schedule 1. The court must have regard to “all the circumstances of the case” including:
(a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(c) the financial needs of the child;
(d) the income, earning capacity (if any), property and other financial resources of the child;
(e) any physical or mental disability of the child;
(f) the manner in which the child was being, or was expected to be, educated or trained.
What will the Court award?
Under a schedule 1 application the Court has the power to make a variety of orders and may award any of the following:
1. The transfer of a property. The housing needs of a child are met by transferring property (usually the former family home) to a parent until that child is an adult.
2. Lump sum payments to cover capital expenditure. This is usually for items which depreciate such as cars, computers or perhaps to cover expenses already incurred.
3. Periodical payments to address the costs of a child’s disability or school fees, or to provide top up maintenance. Such payments are not awarded for general maintenance of a child as these payments come under the jurisdiction of the Child Support Agency. The Court can only award general maintenance (i.e. Top Up) payments where the paying party has a net income in excess of the CSA/CMS maximum threshold).
What about property rights?
If one party owns the property outright, but the other party has contributed towards its costs and upkeep, there may be trust claims to resolve.
This means that if one party has been contributing towards the property through mortgage payments, a contribution towards the deposit when the property was first purchased or has paid for renovation works they may have created an interest in the property even though the property documents state that they are not a legal owner of the property.
Where there is a dispute about whether one party has created an interest in the property there may have to be separate Court proceedings to deal with that issue. This is dealt with in more detail on our TOLATA page.
The Schedule 1 application can override property rights meaning that the Court can transfer a property belonging to one person to another (the property will usually be returned when the child(ren) reach majority).
Who should pay for the legal costs?
Parties should also be very wary of costs orders. The general rule that each party should pay their own costs in children matters doesn’t apply to schedule 1 claims.
As such if a party proceeds with a claim under Schedule 1 they must be aware that if they are unsuccessful the Court has the power to order that they will be responsible for not only their own legal costs but the other parties costs too.
Get In Touch!
At Castelo Solicitors we provide our clients with expert legal advice and support with the Schedule 1 application as well as all Children Law matters.
Get in touch with our family law specialist today to find out how we can support you through the claims process.