30th November 2023

Maintenance on relationship breakdown

Anna Roiser

Senior Knowledge Lawyer

On divorce, a party can apply for maintenance to help them meet their future outgoings. There is no equivalent right when a cohabiting relationship breaks down. This is the case even if the parties were in a relationship for decades or had children. This can leave one of the parties – often a woman whose primary role has been as homemaker and mother – with no means of supporting herself. This is in addition to her lack of rights to share in the capital assets built up during the relationship, though she may have a claim housing provision during her children's minority.

Child maintenance, however, can be claimed by both married and unmarried parents. Where the payer’s income is less than £156,000 pa gross, its amount is determined by a formula. However, where the payer’s income exceeds £156,000 pa, child maintenance can be determined by the court. The court has used this power to develop what amounts to limited maintenance provision for mothers who were not married.

The law on this type of maintenance was clarified by Mr Justice Mostyn in the case of Collardeau-Fuchs v Fuchs [2022] EWFC 135, where he termed it a “HECSA”: Household Expenditure Child Support Allowance (replacing the former terminology of “carer’s allowance”).

The amount of a HECSA is assessed by reference to a budget prepared by the mother setting out the costs of meeting the child’s needs and household costs, and the father's ability to pay. The budget will be assessed by a judge as to whether it is reasonable, and it will often be cut. ‘Needs’ is obviously an elastic concept, but the guidance is that the child’s standard of living should bear ‘some sort of relationship’ to the family’s standard of living during the parents’ relationship, or, where there was no substantial relationship, to the father’s standard of living.

The budget may extend beyond the child’s direct expenses to include the mother’s household costs to the extent that she can't meet them from her own resources. This is on the basis that ‘it is permissible to support the child by supporting the mother’. The HECSA can therefore cover costs which are personal to the mother so long as they are ‘connected to her role as carer’. Offering some insight into the judicial view of the maternal role, Mr Justice Mostyn explained that this would include designer clothing but not a nightclub subscription.

We therefore now have a situation where a woman may be in one of the following positions in relation to maintenance following a relationship breakdown:

If she was married (and had not entered a nuptial agreement limiting her claims on divorce), she will be entitled to maintenance covering all of her needs to the extent that she cannot meet them herself (her nightclub memberships as well as her designer clothes) for so long as the court considers appropriate.
If she was not married and :
1. Her former partner earns more than £156,000 pa gross and they have children under 18 or in education, she will be entitled to a budget-based HECSA terminating when the children reach 18 or conclude their education.
2. Her former partner earns less than £156,000 pa gross and she has children under 18 or in education, she will be entitled to statutory child maintenance, calculated by reference to a formula taking into account the number of children, the father's income, how much time the children spend with him, and how many other children he has responsibility for (but not her budget).
3. The children are grown up, she will have no entitlement to maintenance, even if she spent thirty years at home raising the children enabling the father to pursue a lucrative career whilst sacrificing her own earning capacity.
4. The parties did not have children, she will have no entitlement to maintenance, even if they had agreed that she would give up her career to support that of her partner/keep his home/care for his elderly parents/her step-children etc.

This situation has evolved as a result of judges doing their best to achieve fairness within the constraints of the statutory system, but it lacks coherence. Given that it is usually women who compromise their earning capacity for the benefit of their family, it is generally women who suffer as a result of the law’s inadequacy.

Last year, the government rejected the House of Commons Women and Equalities Committee's recommendation to ‘reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation’. The government’s position was that the project to review the law on financial claims on divorce (which is at a very early stage) must conclude first.

Whilst many consider it appropriate for a woman’s financial claims on the end of her relationship to depend on her marital status, the differences should reflect a fair and rational approach.

The Labour Party has committed to reviewing cohabitants’ rights, and it is to be hoped that we will finally see clarity and fairness in this area of the law. What is needed is a holistic consideration of the range of circumstances in which relationship breakdown may occur, resulting in a coherent regime setting out the financial consequences in each situation. This would enable the public to have a clear understanding of the financial obligations arising from marrying, cohabiting, and having a child.