only parent who automatically has
custodial rights is the mother. The father
of a child born out of wedlock has to
make an application to the court to have
the same rights as the mother. In the
law relating to married couples, there is
no distinction between the parents and
both have equal custodial rights.
So far as custody and access are
concerned, once the unmarried father
makes his application, there is no
distinction in treatment of the children;
but there is a difference financially.
Under the matrimonial law relating
to financial provision for children, the
court is duty bound to try to place
the children in a similar position as if
the parents were still married. There
is significant financial protection for
the mother too, including monthly
maintenance, lump sum payments,
transfer of property or sale of property,
whereas 'common law' (legally
unmarried) wives are not entitled to any
of those financial provisions. A mother
who was not married will only be
allowed a 'carer allowance' to support
her child-rearing – a sum for her basic
needs if caring for her children reduces
her ability to work. This is usually
considerably less than maintenance
for a married mother. Additionally, any
entitlement to a share in property is
likely to be limited. Unmarried fathers
who take care of the children rather
than being in the workplace have the
double trouble of having to make the
application to be recognised as a
custodial parent, as well as the inability
to claim financially.
Parents can apply to the court for
monthly maintenance on behalf of their
children, for lump sum payments, and
for the creation of trusts for the benefit
of children. Children of married parents
are additionally entitled to a straight
order in their favour for the purchase
of a home, which is not available for
children born out of wedlock. These
distinctions may well be consigned to
history if the long awaited Children’s
Bill becomes law. In the meantime,
however, this is still the position.
What if you then add jurisdictional
September 2016
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