With headlines such as the Daily Mail’s, “Liam Payne calls in divorce lawyers to advise how to protect his £54m from Cheryl and still have access to his son…”, it is not surprising that there remains confusion about unmarried couples’ rights when they separate and their obligations to one another.
Within this one headline alone there is reference to:
- divorce lawyers
- protecting £54m of assets from Cheryl; and
- the inter-relationship between finance and “access” to children
So what is the position when a couple who are not married separate? Is there such a thing as “common law marriage”?
Well the answer to the second question is simple — no. You are either married, or you are not; there is no middle ground even if you have a child together. Accordingly, as Cheryl and Liam are not married, they would not be able to get divorced, so reference to a “family solicitor” would have been far less confusing than the term “divorce lawyer”, albeit less sensationalist.
As Cheryl and Liam are not married, are they under an obligation to support each other financially? Again, the way this has been reported with headlines such as Liam trying to, “protect his £54m from Cheryl”, suggests that Cheryl would have a claim against Liam by virtue of their relationship. This is not strictly true.
When a divorcing couple divide their finances, they do so using law enshrined in the Matrimonial Causes Act 1973. This gives the court wide ranging powers to alter the parties’ financial positions through various mechanisms such as the provision of spousal maintenance, the sharing of pensions, the transfer of assets from one to another or the sale of assets to realise and distribute cash. The aim of the court is to achieve “fairness”, ensuring that the parties’ needs are both met as far as possible using the assets available.
For unmarried couples, the position is very different. There is no provision to allow the court to alter the parties’ financial positions and the court cannot be asked to make an award to achieve “fairness” or to meet needs. The court could not, for example, order Liam to pay maintenance to Cheryl or to give her something which belongs to him. That is, of course, unless the parties have entered into some form of cohabitation agreement, but the enforceability of such agreements, especially in relation to ongoing maintenance, is a tricky area to navigate and beyond the scope of this article. In fact, the only application either of them could make to the court is to ask the court to determine in what shares they each hold any jointly owned property. However, the court’s remit is limited to determining the shares, not altering them.
Accordingly, in the absence of any cohabitation agreement, should Liam and Cheryl separate he should not be too concerned about, “protecting his £54m from Cheryl” and equally, the same applies in relation to Cheryl’s not insubstantial assets. For unmarried couples, there is no obligation to financially support each other on separation.
Liam’s only financial commitment will be to his son (Bear), and this would take the form of child maintenance and/or making capital provision for him (assuming Bear predominantly lives with Cheryl). In the first instance, if the parties cannot reach agreement as to the level of maintenance directly, child maintenance would be calculated by the Child Maintenance Service using a statutory formula. If Liam’s net income exceeds £104,000/year, Cheryl could then apply to the court for further child maintenance, known as a top up. Cheryl could also apply to the court for Liam to make capital provision for the benefit of his child such as the provision of a property.
It is, however, important to note that this support is for the benefit of the child, not Cheryl. If, for example, Liam was ordered to give Cheryl capital to allow her to purchase a house to accommodate her and Bear, the house may have to be returned to Liam once Bear turns 18 as the house would no longer be for the benefit of Liam’s child.
In terms of “access” to Bear, the headline alludes to Liam having to tread a fine line between protecting his assets and his ability to spend time with his son. This is far from accurate. Finances and children do not mix and financial support is not a factor determining when the child spends time with each parent or with whom the child should live with.
