“A fairer end to relationships” marks a pivotal moment in family law, finally addressing the injustice long faced by cohabiting families. The proposal to introduce a single framework governing financial provision on separation regardless of marital status is particularly welcome and should promote a more logical, coherent and accessible system. There is, however, an opportunity to go further by incorporating claims under Schedule 1 of the Children Act 1989 and integrating applications under the Trusts of Land and Appointment of Trustees Act 1996. This blog examines how the proposed framework interacts with these existing regimes, and argues that greater integration is needed to achieve a truly streamlined and principled system.
Under the proposals, separated partners would fall into one of four categories in the table below.
| Eligible applicants | Bases of claim for financial provision | Court’s powers | |
| 1. |
|
Under new regime:
|
For benefit of applicant:
For benefit of child:
|
| 2. |
|
Under new regime:
|
For benefit of applicant:
For benefit of child:
|
| 3. |
|
Under CA 1989
|
For benefit of child:
|
| 4. |
|
|
N/A |
* Needs refers to housing, income and pension needs. For clarity I refer to this category of needs as “core needs” below.
** Discretionary needs refers to luxuries or lifestyle comforts rather than necessities.
To explore how this regime might operate in practice, I consider the proposed new approach to “needs”, its relationship with existing jurisprudence, particularly under Schedule 1, and why the assumption that cohabitants would no longer need to bring TOLATA claims is flawed.
Under Schedule 1 a parent’s personal needs can, to some extent, be met through provision for the child. The key distinction is between needs personal to the parent and those related to their role as carer, rather than between core and discretionary needs. This makes a direct comparison between the second and third categories above more difficult. Bringing Schedule 1 claims within the same regime, and adopting a unified approach to the meaning of “children’s needs”, “needs” and “discretionary needs”, would improve coherence and clarity, particularly for cohabitants seeking to assess the consequences of entering into an opt-out agreement.
Under Schedule 1, outright home ownership is treated as a need personal to a parent rather than one connected to their role as carer, meaning housing provision is invariably provided on trust. But would owning one’s home outright be characterised as a “discretionary need” – a comfort rather than a necessity? If so, qualifying cohabitants would also be restricted to trust-based housing provision (potentially on different terms) as would spouses bound by a Qualifying Nuptial Agreement.
In AH v BH [2024] EWFC 125 Peel J noted that in reported PNA cases, primary carers without significant assets of their own have consistently received outright housing provision, whilst applicants who were not primary carers had been limited by PNAs to housing provision on trust, whether on a Mesher basis (for the duration of the children’s minority) or a Martin basis (for life). Would this approach be transferred to the new regime? Perhaps not: in his judgment Peel J expressly rejected Mostyn J’s view that where there is a valid PNA needs should be limited to essentials, but the new scheme appears closer to Mostyn J’s approach.
Qualifying cohabitants will only be entitled to periodical payments for their own benefit in exceptional circumstances. However, those with children where the respondent’s income exceeds £156,000 per annum gross would, under Schedule 1, be able to claim a “Household Expenditure Child Support Award” (HECSA), under which many of their own needs would be covered. In Collardeau-Fuchs v Fuchs [2022] EWFC 135 Mostyn J held that “a HECSA cannot meet those expenses of the mother which are directly personal to her and have no reference to her role as carer of the child. An example is a subscription to a nightclub. However, the award can meet the expenses of the mother which are personal to her provided that they are connected to her role as a carer. Examples are the provision of a car or designer clothing”. How does this intersect with the new regime’s proposed distinction between core needs and discretionary needs?
The consultation describes discretionary needs as: “lifestyle ‘luxuries’. For example… expensive cars or designer items including clothing or accessories”, and “comforts rather than necessities… for example, luxury items such as a high value car, non-essential home improvements or private club memberships”. Does that mean designer clothes are a discretionary need to which a cohabitant (or spouse with a qualifying nuptial agreement) is not entitled, but if they have a child then they can claim them by way of child maintenance? Incorporating Schedule 1 within the new framework would provide an opportunity to clarify the scope of a HECSA and its relationship with “needs” and “discretionary needs”.
It is also notable that the consultation does not divide children’s needs into core and discretionary categories, though children’s needs can also be met at different levels of comfort. Are children’s needs intended to encompass discretionary needs where affordable? If so, will there be cases where judges have to assess a child’s standard of living at a higher level than that of their primary carer? How would that work in practice, and what might be the impact on the child?
The consultation states that the government “does not expect that qualifying cohabitants would make applications under TOLATA 1996, in the same way that divorcing couples currently do not do so”. In matrimonial claims the court can determine whether an asset is matrimonial and subject to the sharing principle; the family home is generally treated as matrimonial meaning there is no need to investigate the parties’ contributions to it to determine how it should be treated. This would not apply in cohabitation cases; instead of establishing whether assets are matrimonial or non-matrimonial to find the starting point the court would need to know the beneficial ownership of the assets. Requiring that determination to be made in civil proceedings before a claim for financial provision on separation could be brought in the Family Court would impose a huge burden and cost on cohabitants, and impact on the limitation period. It would also mean that cohabitants continue to be subjected to procedural rules designed for commercial disputes, ill-suited to the complexities of family breakdown, especially where domestic abuse features.
Property disputes between cohabitants should instead be determined within the same proceedings as financial provision claims, just as the Family Court currently determines which assets are matrimonial within financial remedy claims. Indeed, legislative reform provides an important opportunity to extend the jurisdiction of the Family Court to TOLATA claims. This would also enable non-qualifying and opted-out cohabitants to bring any necessary TOLATA proceedings in the Family Court and under the Family Procedure Rules, whether within a Schedule 1 claim or in a freestanding application. The opportunity could also be taken to adopt a “codification plus” approach to the law on common intention constructive trusts in a domestic context, which would hugely assist those without legal assistance.
Bringing together all claims arising from family relationships within a single framework would further the government’s aims of providing a clear and accessible framework and protecting the vulnerable. This is a rare opportunity to reshape family law, and every effort should be made to ensure the result is a coherent regime, readily accessible to those who need it.
Anna Roiser, senior knowledge lawyer, Hunters
