Financial provision for adult children

12th October 2020

Do the family courts have jurisdiction to grant financial provision orders on the application of an adult child against their parents, when the parents are still married and cohabiting?

Financial provision orders case study

In this article we consider the recent judgement of FS v RS and JS [2020] EWFC 63.

The facts

The Applicant was aged 41, suffered from mental health disabilities and had been unemployed for nine years. At the time of his application he was studying in London to obtain further qualifications. His parents, who lived together in Dubai and were still married, provided the Applicant with financial support by allowing him to live in a property they owned in London and by paying utility bills.

When the relationship between the Applicant and his parents deteriorated, the financial support they provided reduced significantly.

The Applicant applied to the family courts for financial provision from his parents pursuant to the Matrimonial Causes Act 1973 s.27, the Children Act 1989 Schedule 1 and the court’s inherent jurisdiction.

The law

Section 27 of the Matrimonial Causes Act enables the court to make financial provision orders where one party to a marriage neglects to maintain the other party or a child of the family. “Either party to the marriage” can apply (i.e. the husband or wife). Children over the age of 16 can also apply, but only where a periodical payments order has already been made by the court in their favour. That was not the case here.

Schedule 1 of the Children Act enables the court to order financial relief for persons over eighteen against their parents. However, para 2(4) is clear that “no order shall be made at a time when the parents of the applicant are living with each other in the same household”. This meant the Applicant was also barred from receiving an order under this authority.

That left the “court’s inherent jurisdiction”. This in essence means all matters that the court is allowed to determine, and orders that they have the power to make. This is subject to any statute or rule that excludes its jurisdiction, and as explained above the court’s ability to make the financial order the Applicant had requested was expressly barred by the wording in section 27 and schedule 1.

The Applicant also raised the argument that the statutory provisions (outlined above) should be ‘read down’ as they breached his rights under the European Convention of Human Rights (“ECHR”). Firstly, the courts could not read down the statutory provisions in any event as they had a very precise and clear Parliamentary purpose. Secondly, none of the ECHR articles were engaged, and being a child of parents who are/not divorced is not a “status” protected from discrimination under article 14.

The decision

The court did not have jurisdiction, and the application was refused.

Commentary on financial provisions for adult children

This is an unusual case on its facts, but the court was very clear. Adult children can only apply for financial provision orders against their parents in limited circumstances.

Under the Matrimonial Causes Act Section 27, a parent must have previously applied to the court for a periodical payments order (against the other parent) in the child’s favour.

Alternatively, under the Children Act Schedule 1, either:

  • The child must be, or would be after the order, receiving education or undertaking training for a profession or trade; or
  • There be special circumstances to justify the order.

In both cases it must also be established that the parents of the applicant are not living together in the same household at the time the order is made.

Whether a “special circumstance” has arisen is a matter of discretion for the courts, however authorities such as T v S [1994] have indicated this will generally constitute (but is not limited to) a physical or cognitive disability. For example special circumstances were found by the court in C v F [1998] where the child in question was severely disabled and would be dependent on others for the remainder of his life. The court in Chamberlain v Chamberlain [1973] made it clear that the special circumstance must require the child to make demands on their parents after the conclusion of their full time education, however the wealth of the child is not of itself a factor as stated in MT v OT [2008].

How we can help

If you need assistance in respect of financial provision orders, in either children or matrimonial proceedings, please contact our Family Team.

If we can assist you with anything in this article

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