Marilyn Stowe Blog

Unmarried parents, children and chequebooks

Some of the cases with which I become involved strike me as “entrapment”.

Following my comments about cohabitation, Mr. Justice Charles, a veritable Sir Lancelot in shining armour, rides to the rescue!

I am often asked to advise mothers who have not married their partners. They need to know the financial settlements they can expect for themselves and their children when cohabitation breaks down. The reasons why they have never married are varied.

In cases involving wealthy men, I have often found that the husband’s fear of paying a substantial divorce settlement is a key factor. Such men view themselves as open chequebooks. Yet they also want to have their fun. That usually includes an attractive woman and unprotected sex.

Some of the cases with which I become involved strike me as “entrapment”. I can recall one wealthy client, who had to confront a paternity suit from a Russian nightclub hostess after a one night stand. He had been wined and dined in a London club and, having drunk too much, had picked up the stunning looking woman. Following unprotected sex, the woman announced that she was pregnant – and paternity tests would later confirm that he was the father. This man was unlucky. Before the child was even born he was faced with the mother’s applications for housing, maintenance and capital.

My client wanted to protect himself against any future comebacks. He agreed to provide funds to enable mother and child to live in a modest house, that she would own, but on the basis that there would be no further claims against him – including child support. Any future claims would be offset against the equity in the house. The client decided to have no relationship at all with his child, and the matter ended peaceably. Perhaps in years to come, the child will wish to learn more about his millionaire father – and who would blame him?

In law, however, this type of “clean break” arrangement is far from typical.

The recent case of Moses-Taiga v Taiga, (MT-v-OT (2007) EWHC 838 (Fam)) in which Mr. Justice Charles delivered his customarily lengthy judgment, is a must-read for wealthy fathers and their partners.

In the judgment, Mr Justice Charles restated current law; in particular, that in cases involving wealthy parties, parties should have broadly comparable homes. He made the point that even if the father enjoyed greater financial resources than the mother, their children were entitled to be raised by both parties in circumstances that bore a relationship to the wealthier party’s current resources and standard of living.

This does not mean that in such cases, the mother would own the property. Instead it would be purchased by and owned by the father, and would revert back to him when the children became adults or finished their full time education.

Mr. Justice Charles added that the length and nature of the couple’s relationship was generally of little relevance. After all, a child born after a one night stand has the same needs and dependency as a child born after parents have cohabited for years.

For me, the most interesting part of the judgment is his examination of what is referred to as the “wife’s maintenance” in a case involving a married couple, and the “carer’s allowance” in a case involving a cohabiting couple.

How is the mother’s allowance as the children’s carer to be calculated? Mr. Justice Charles says that “a generous and broad brush approach” should be adopted. There is “an inevitable tension between a mother’s lack of personal entitlement and her entitlement as the children’s carer, which could be difficult to balance”. This is “particularly marked where the father is very wealthy”.

The court had to “recognise the responsibility and often the sacrifice of the unmarried parent. In order to discharge that responsibility the carer had to have control of a budget that reflected her position and that of the father, both social and financial.”

This is a pragmatic judgment, which sets out the law and demonstrates the willingness of the courts to make appropriate provision for children and their mothers.

What is still needed, however, is provision for cohabitants in their own right – not by proxy through a child. What if a couple splits up after their children have left home, or if they have no children? The woman can be left with no income, no capital and no pension except for the state one. The relationship could have left her at an economic disadvantage – but unlike a married woman, she would have no automatic entitlement to compensation.

I appreciate that, using what he had available to him in law, Mr. Justice Charles did what he could. We need specific law, so that cohabitants can put their relationship before the court in the same way that divorcing couples can.

If only we had a Sir Lancelot in government!