Recently, I have dealt with several cases that have multiple avenues of litigation available. Whilst Schedule 1, Possession Orders and TOLATA can easily be defined as separate entities (bearing in mind they are all different law with different scopes of power), a very basic cohabitation case can often engage all three.
In the event that you are cohabiting with your partner, with a child or children in the property and the relationship breaks down, there are several ‘red flag’ factors that would warrant a discussion about the appropriate course of action. Firstly, parties with significant income disparities and particularly where one party has been financially dependent without the protection of marriage. Secondly, children that are minor and are likely to remain resident with the financially weaker party or at least have regular overnight contact. Thirdly, a material dispute as to whether a beneficial interest exists in the first place (largely because the property is held in a sole name and there has never been an agreed history of events in terms of how it would be dealt with on separation).
If this is the case, then all of the above courses of law can engage each other in complex and problematic ways. A Family solicitor should be able to go through how each process interconnects, which is critical to avoiding procedural mishaps.
Schedule 1 of the Children Act provides a mechanism for the Court to make financial provision for children, from one parent’s resources. Orders can be made in the form of lump sum payments, periodical payments, the transfer of property or an interest in property. The overarching principle is the welfare of the child, meaning that this avenue is not designed to compensate a financially weaker parent/cohabitant but of course, is likely to have this knock-on effect if they succeed. Schedule 1 claims very often implicate property interests, and if the extent or existence of this interest is disputed, then this cannot be resolved ‘part and parcel’ of Schedule 1 alone.
A recurring complication arises if Schedule 1 is initiated, but the extent of the interests are unresolved. Unless there are an agreed surplus of other resources to draw upon, the Court may be unable to enforce an outcome. Bearing in mind that Schedule 1 is a protracted process anyway, despite being sometimes the only avenue available to a financially weaker parent, parents can be stuck in this grey area waiting to have their interests decided if the process is engaged in the wrong order. Case management can cause issues even among practitioners at this point, and even more so if parents are without legal advice.
Possession orders in comparison, deal with the rights of legal owners to occupy or recover possession of their property. Whilst this is not directly under the generic ‘Family Law’ umbrella, possession orders often intersect with TOLATA, which governs cohabitant relationship breakdowns in terms of deciding trusts and interests in shared property.
Case management problems can appear when a possession order is sought before beneficial ownership is resolved (even if one party decides it is, or the other side has not engaged fully). The Court as a whole are generally reluctant to grant possession or evict a partner where it could prejudice their rights. If parents make the application for a possession order pre-emptively, these proceedings should be expected to be adjourned pending the beneficial interest being agreed or determined by the Court. The Court will not interfere with the TOLATA process or opt to hear the submissions as part of the possession process, given that this is the incorrect process to seek such a remedy.
TOLATA comes into force when unmarried cohabitants cannot agree on a sale, transfer or recognition of interests in property. The Court can compel that the parties sell, manage differently or recognise a proportion of the property as the other party’s interest.
In short, when a property (or properties) are implicated in terms of financial issues and provision for the children at the same time, parents should be wary.
If in doubt, is generally necessary for TOLATA applications and Schedule 1 claims to be consolidated in parallel to the other. Once the extent of the other parent’s interest is dealt with, Schedule 1 is able to be pursued bearing in mind that the Court will have a full appreciation of what type of Orders can be made and how they can be enforced. If the Court were to proceed with Schedule 1 without clarifying equitable rights, there is a substantial risk that the Orders could be unfair or not align at all with the financial determinations in TOLATA.
Another problem with these disputes (and often the elephant in the room), are the child arrangements. Whilst the Children Act 1989 puts the child’s welfare at the forefront of the Court’s focus as the paramount consideration, disputes over property and finances often have a direct impact on how child arrangements pan out.
One party may submit that the other’s unresolved (or lack of) property interests or inadequate financial resources compromise their ability to care for their child. This could impact residence or contact arrangements. Unfortunately, disputes over contact can be leveraged to influence the financial negotiations. Ultimately, a Schedule 1 claim would not prioritise a financially weaker parent with no child to care for on a regular basis. The Court and practitioners must help the process by separating welfare concerns from financial leverage. This can sometimes be incredibly hard to untangle if you do not know the parties personally.
The complexity inherent in these ‘clashing’ legal frameworks can be a real case management nightmare. Multiple hearings, different pre-action protocols and interlinking proceedings can create delay beyond normal expectations and incur costs three times as fast if done improperly. The Family Court are often mindful of consolidating cases to achieve dual outcomes in one (normally TOLATA and Schedule 1), consider whether judicial continuity is best placed, and to make interim Orders that protect the financially weaker party from prejudice. An example could be a temporary Order for the financially weaker parent to occupy the family home. This would safeguard their child’s living arrangements but would not seek to undermine the financial aspects or to pre-determine any Order to that extent.
Ultimately, the intersection of Schedule 1, possession orders, and TOLATA illustrates the complex relationship between child arrangements, property rights, and financial provision under Family Law. Each framework serves a distinct purpose, but when they collide, careful management from the Court and practitioners is required to prevent unfairness.
