Managing Associate
Freeths
When a marriage breaks down, financial settlements can be particularly complex where one spouse has sacrificed their career to raise children. In England and Wales, the law recognises this contribution and provides a framework for fair financial division under the Matrimonial Causes Act 1973. This contrasts sharply with the legal position of unmarried cohabitees, who have far fewer rights.
Cohabiting couples in Britain account for nearly 1 in 5 families and are the fastest growing family type – with almost 3.6 million opposite-sex cohabiting couple families. Despite this, when a cohabiting couple’s relationship breaks down, the law treats them as though they were two completely unconnected individuals with no basic legal protections.
Financial Claims Under the Matrimonial Causes Act 1973
A stay-at-home parent who has put their career on hold for the benefit of the family may be entitled to substantial financial relief upon divorce. Under the Matrimonial Causes Act 1973, the court has wide discretion to ensure a fair division of assets and income, taking into account factors such as:
- The needs and resources of both parties – this includes income, earning capacity, property, and financial obligations. A parent who has been out of work for many years may struggle to re-enter the workforce at the same earning level as before.
- Contributions to the marriage – non-financial contributions, such as childcare and homemaking, are valued equally to financial contributions. The court acknowledges that raising children is a crucial role that has economic value.
- The welfare of any children under 18 – ensuring financial stability for children is a priority, often influencing maintenance and housing arrangements.
Types of Financial Orders Available
A stay-at-home parent may apply for various financial orders, including:
- Spousal Maintenance – A regular payment from the financially stronger spouse to help the stay-at-home parent meet their needs, especially if they cannot immediately become financially independent. This may be for a fixed term or, in some limited cases, for joint lives.
- Lump Sum Payments – A one-off capital payment to balance the division of assets.
- Property Adjustment Orders – The court may transfer or adjust ownership of the family home, sometimes allowing the primary caregiver to remain there until the children are older/finish their secondary education.
- Pension Sharing Orders – Stay-at-home parents may claim a share of their spouse’s pension to provide for their long-term financial security.
Key Differences: Married vs. Cohabiting Parents
While married stay-at-home parents have various legal rights upon divorce, cohabiting partners have no automatic financial claims against each other upon separation, regardless of how long they lived together or whether they raised children together. The law does not recognise “common-law marriage.” Instead:
- A cohabiting parent can claim child maintenance from the other parent, calculated under the Child Maintenance Service (CMS) formula.
- They have no right to spousal maintenance or a share of their partner’s assets unless they can prove ownership through property law principles, such as trust claims.
- Cohabitees cannot claim a share of their ex-partner’s pension.
A co-habitee may have recourse to make claims under Schedule 1 of the Children Act 1989, but these financial claims are solely for the benefit of any children of the family and not for themselves.
Conclusion
For stay-at-home parents, the Matrimonial Causes Act 1973 provides vital financial protections upon divorce, recognising the economic sacrifices made in raising children. In contrast, unmarried cohabitees face significant financial vulnerability, with limited legal remedies available.
- Under current law, it is possible to live with someone for decades and have children together, but then simply walk away with the economically stronger party taking no financial responsibility for a former partner when the relationship breaks down.
The current Government have committed to legislation to better protect cohabitees, however, as yet, there is no date for when this new legislation may come into effect.
About Stephanie Kyriacou
Stephanie Kyriacou is a Managing Associate in Freeths Family team and is based in the East Midlands. Stephanie is a highly experienced specialist family lawyer whose work includes divorce, middle to high net worth (HNW) financial matters, private children law matters, cohabitation disputes, Schedule 1 claims and pre and post nuptial agreements. Stephanie is on the board for the Leicestershire Resolution Committee and is committed to the Code of Practice which promotes a constructive approach to resolving family issues that considers the needs of the whole family.
A link to her profile can be found here: Stephanie Kyriacou | Family Law | Leicester | Freeths