Financial support for unmarried couples and provision for “adult” children

Couples who choose not to get married are not offered the same financial protection upon separation and this can be worrying, particularly when children are involved.  The law is constantly changing and developing with a view to assisting unmarried couples with their financial separation. Recently the Court has made a potentially significant decision in relation to financial provision for adult children, which may impact the way in which unmarried couples deal with financial support for their children going forward.

Parties seeking financial support for their children, upon separation, rely on Schedule 1 of the Children Act 1989 to bring their claims.  The legislation is very specific – any application brought for financial support must be for a ‘child’ or ‘children’ under the age of 18 (although a child over the age of 18 can bring their own application in special circumstances). Therefore, up until this year, the Court has not been inclined to make any financial provision for children extending into their adulthoods.

In a recent decision by Mr Justice Williams, in the matter of DN v UD [2020] EWHC 627 (Fam), the Court steered away from precedent and made a decision to award capital sums to the applicant’s two youngest children to enable them to purchase their own properties outright in the future.  When considering how this may impact the use of Schedule 1 claims going forward, it is important to understand the facts behind the case and the Judge’s reasoning and those are discussed below:

Case Facts

The main facts of the case are:

• Mother and Father were both Russian Nationals who cohabited on and off for approximately 20 years. Their relationship ending in 2016. It was noted by the Judge that during this time, the Father had married three other women, divorcing two, and going on to father several other children.
• The parties had three children together aged 14, 19 and 22 at the time of the hearing of the Mother’s application.
• Upon the insistence of the Father, the Mother had resided in London since 2010 with the parties’ three children. As the children were living in England, this gave the Mother the ability to bring her claim in the Courts of England and Wales.  The Mother sought full financial support for all three children, despite the eldest child being over 18 at the time the application was filed at Court.
• Father was exceptionally wealthy and had used this to exert unnecessary financial control over the Mother and their children. He had made significant financial gestures to the Mother and the children but used this to manipulate the family by, for example, providing funds by way of a gift and then later claiming they were loaned and required repayment.  Serious findings were made against him in relation to his conduct at a fact-finding hearing and this was supported by the fact the Mother had secured several Family Law Act orders to prevent his behaviour.
• Since 2010, the Father had provided the Mother and the children with a home. At the time of the hearing, the family were living in an apartment in London worth in the region of £10 million.  The parties’ oldest child had been given over £600,000 to purchase a property by the Father but the Father had a disagreement with the child over the return of the funds and as a result, he sought to evict the family – using physical force to do so.  He did not succeed but this highlighted to the Court the Father’s unreasonable behaviour.
• When asked to provide full financial disclosure of his assets, the Father adopted the ‘Millionaire’s Defence’ which meant he did not have to provide disclosure as he was not challenging the fact that he could afford to pay whatever the Court ordered him to. He disputed the reasonableness and jurisdiction of the Court to make various orders in relation to the children.
• By the time the Final Hearing took place, the middle child was aged 19 (having been 17 at the start of the process) and the Father argued that as the child was now an adult, Schedule 1 provisions in relation to providing capital lump sums for the child did not apply.

Outcome

The Court awarded the Mother the following provisions:

1. £200,000 per annum maintenance for the children which was to be index-linked.
2. The London apartment was to be held on trust for the Mother and the children until 6 months after the youngest child completed their tertiary education.  The Court dismissed the Father’s arguments that the trust was not financially sensible and instead wanted to, in essence, ‘lease’ the property to the Mother for no rent, on the basis that the children needed independence from the Father.
3. Upon the trust coming to an end, the two youngest children were to receive capital sums to enable them to purchase their own properties in their adulthoods.
4. No provision was made for the parties’ eldest child as the child was over the age of 18 at the time the application was made, and Schedule 1 does not allow parents to bring claims for their adult children.

Analysis of the decision

It is clear that this decision flies in the face of the cases gone before it and has potential to open the door for more children to seek financial support from their parents into their adulthoods.  Whilst it has always been the case that Schedule 1 enables adult children to apply for financial provision if there are special circumstances which justifies such an order being made, historically, this has only applied to children who have disabilities rendering them in need of additional financial support from their parents.

This decision suggests that the Court will no longer limit provision for an adult child with disabilities and may extend provision to adult children in other circumstances.   What it does not do however, is clarify what ‘other circumstances’ may warrant provision being made.

The Judge here was concerned by the Father’s manipulation and financial control of the family and he felt, in the interests of the children’s welfare, the children needed to be able to secure financial independence into their adulthood to move away from the control.  This, coupled with the Father’s significant wealth, seemingly persuaded the Judge to move away from the usual interpretation of Schedule 1 by awarding the two youngest children with capital to allow them to purchase their own homes in the future.

The case does make clear that parents are not able to apply for provision for children who are already over the age of 18 at the time the application is submitted and, on this basis, nothing has changed.

It remains to be seen if this judgment will lead to more cases of significant financial provision being made for children into their adulthood.  It is possible that this is just one of those unique cases where the circumstances were so unusual that the Court could justify a departure from the norm.

It is unlikely to have any real impact in cases where there are limited financial resources in order to meet needs as the Court will not have scope to make such orders.

It does highlight that the relevance and importance of Schedule 1 claims for separating couples is going to increase over the forthcoming years as a result of couples not choosing to marry and it is apparent the Courts are going to be facing many more questions about the interpretation of Schedule 1 in circumstances such as this.  Time will tell how important this case will be to that interpretation.

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