Wait For It: Cohabitation Reform, Schedule 1 and the Unmarried Family

Dear Theodosia

In Hamilton the musical, Aaron Burr sings to his newborn daughter Theodosia about the world he hopes to build for her. In the show, Burr’s relationship with Theodosia’s mother begins while she is still married to a British officer. Historically, Burr did marry her — but suppose a modern-day Burr and Theodosia’s mother had never married and later separated in England and Wales. What financial claims could be made for baby Theodosia?

As the law currently stands, there is no ‘common law marriage’ in England and Wales. An unmarried partner has no right to financial provision for themselves on separation, however long the relationship lasted. However, financial claims can be made on behalf of a child under Schedule 1 to the Children Act 1989, which is predominantly used by unmarried parents because married couples tend to deal with financial matters (including relating to any children) as part of divorce and financial remedy proceedings or negotiations. Schedule 1 is therefore child-focused; it is not a substitute for financial relief between former partners (save in so far as that relief relates to the needs connected with a child).

Child maintenance is normally calculated with reference to formulas applied by the Child Maintenance Service (CMS). The court can step in where the paying parent’s gross income exceeds the CMS cap of £3,000 per week (around £156,000 a year), to make a ‘top-up’ order; where children are privately educated and school fees need to be paid; where a child has a disability; or where the parents agree by consent.

In addition to maintenance, the court can order that lump sums be paid by one parent to another, including for a car, furniture or medical costs related to a child’s birth. The court can also order that property is settled or transferred for the child’s benefit, to meet the child’s housing needs. Lump sum and property orders are for the benefit the child, not the parent (although the parent will indirectly benefit). Typically, this means a home bought by the paying parent and held on trust during the child’s minority, reverting to the paying parent when the child turns eighteen or finishes full-time education.  

Although the recipient parent cannot make a financial claim for their own benefit, the child’s award can include a “household expenditure child support award (HECSA)” (also known as a “carer’s allowance”) so the child can be properly looked after. The court can also make an order for legal fees funding. When deciding what to order, the court considers each parent’s income, earning capacity, property and resources; the child’s own needs; any disability; and how the child is expected to be educated. The child’s welfare is the court’s paramount consideration. Orders generally last until the child is eighteen and can be extended where the child remains in full-time education.

The Room Where It Happens

On 5 June 2026, the Ministry of Justice published a consultation, “A fairer end to relationships”, covering financial remedies on divorce, a new framework for cohabitants on separation, and cohabitants’ rights on intestacy. 

The proposed framework would apply automatically to adults in committed relationships who have lived together for at least three years, or live together and share a child. Couples have the option to opt out by agreement. The starting point is that each person keeps what they legally own. A court could depart from this principle only for defined needs, assessed more narrowly than on divorce. A cohabitant would not do better than a spouse in similar circumstances. Children’s welfare would still be the court’s paramount consideration. It favours a clean break, with maintenance only in exceptional, time-limited cases such as where one party has long-term health issues. If the proposals became law, Theodosia’s mother might have a claim of her own, rather than only through the Schedule 1 claim brought on behalf of Theodosia. 

History Has Its Eyes on You

Burr wanted to leave Theodosia a better world. Whilst the Schedule 1 regime does not provide for former partners’ financial claims against each other, it is the law’s way of ensuring a child’s entitlement to financial provision from a parent does not depend on whether their parents married. It remains to be seen whether and how the law on cohabitation will be reformed. For now, cohabitants will simply have to ‘wait for it’.