A model example of single motherhood?
Liz Hurley won't be your usual unwed mum, but in paternity and maintenance issues she will have to make her case in law like anyone else, says Penny Lewis
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In this increasingly fractured society, the model and actress Liz Hurley is not alone in facing motherhood outside the traditional nuclear family. The tabloids have dined out on the seductive story of the British beauty bedded by an American playboy millionaire, Steve Bing. Miss Hurley claims she became pregnant during the couple's apparently short liaison. Now she must make her case in law like any other single mother.
The immediate task facing the mother is establishing paternity. Fortunately for Hurley, Bing has agreed to a DNA test, an almost infallible means of resolving this issue.
The Child Support Agency (CSA), the government body responsible for assessing, collecting and enforcing child maintenance, says most fathers confirm paternity when asked. In disputed cases the CSA offers discount DNA tests, with the cost refunded if results prove negative. Robin Spon-Smith, a barrister based at London family law chambers, 1 Mitre Court, says where paternity is in doubt "the court can make a direction for blood testing but the father cannot be compelled to comply. However, adverse inferences can be drawn in these circumstances".
If fatherhood is established the man will, irrespective of the brevity of his relationship with the mother, incur shared liability for the child's upbringing. This rule applies even if pregnancy occurred by "entrapment". "No protestations that the woman said that she had taken precautions will let the man off the financial hook," says Neil Russell, a matrimonial solicitor with Westminster firm BD Laddie. Russell says "proving that someone had lied would be difficult". Effectively, courts are likely to be influenced by the fact that no contraception is foolproof. Moreover, even if the man did not intend to impregnate his partner, in performing sexual congress, he assumed a risk of this happening.
Artificial insemination or test tube babies where the donor is a third party leave the long-term partner or husband responsible for their offspring as if the baby had been conceived naturally. Anonymous donors, though, owe no financial obligations to child or mother.
If the DNA test proves that Bing is the father, he would under English law automatically become legally obliged to support his child up to the age of 16 and (if unmarried) up to the age of 19, if he or she remained in full-time education.
The CSA is usually involved in all child maintenance cases where the adult who cares for the child receives benefits and in other instances where maintenance cannot be agreed. A spokesperson from the CSA says it has over one million children registered for payments from "absent fathers".
The criteria laid down in the Child Support Act 1991 as amended by the Child Support Act 1995 provide the framework for calculating the minimum that the individual parent must pay. What was already a complex structure was further refined by the 1995 Act, which gave officials a discretion to determine cases individually. The resulting convoluted equation takes into account general income and outgoings and is based on annually revised income support rates.
Disappointingly, CSA quarterly figures released in August 2001 reveal that in the previous three months only 47 per cent of non-resident parents complied fully with their obligations, 26 per cent were partially compliant and a further 27 per cent defaulted altogether.
Fundamental reforms to the CSA system are being introduced this April when the Child Support, Pensions and Social Security Act 2000 comes into force. A spokesperson from the National Council for One Parent Families says they "are very supportive of the principle of the CSA" and believe that the changes "offer the promise of a reliable system", warning though that "the agency needs the resources to ensure the reforms are given a chance to deliver the money children in one-parent families need".
Spon-Smith says that in cases involving financial support for children "the most important question is, 'Where is the father?'" Significantly, the CSA only has jurisdiction where the child, person with care and absent parent are all habitually resident in the UK. Accordingly, if a father lives in the US, proceedings may need to be commenced against him to secure maintenance. These could take place in America or here under Schedule 1 of the Children Act 1989. This "provides a financial regime for children of unmarried parents". Although there is no financial ceiling, Spon-Smith regards domestic awards as ungenerous compared with the US as they reflect only the financial needs of the child in its minority.
Russell adds that, except in contested divorce cases, the CSA will be the mainstay of financial support for parents of middle to low income brackets. It allows for basic expenses, not a "Rolls-Royce lifestyle". For the more affluent parent who can afford a luxurious standard of living, it is worth applying for extra support through the courts under the Children Act 1989. This can be used to fund private education as well as capital, lump sum and property adjustment orders.
Another important aspect of parenthood is financial provision for the mother. Whereas the CSA does not differentiate between married and unmarried women, its focus being on children, the rights of the mother are conditioned by marital status. Women may be surprised to discover that even in today's emancipated times, married women fare considerably better than their single counterparts when a relationship founders. Only these women are legally entitled to financial compensation for themselves as well as children.
The rights of married women are protected by statute, primarily under the Matrimonial Causes Act 1973. Guidelines for the court are found at section 25. These include the lifestyle enjoyed by the family and duration of the union in addition to parties contributions to the marriage. If the relationship is described as common law this means that a couple are passing themselves off as married even if they have not taken vows. Russell believes that "there is far too often the misconception that the common-law wife has acquired the benefits of cohabitation under the guise of a family unit. If a mother wants to ensure that she is provided for as well as the child, she needs to acquire marital status". It is sobering to realise that unmarried women can only enlist the court's help to determine what already belongs to them, not to transfer additional assets.
Russell, accordingly, recommends that "women who are planning to have children are better off being married than living under the misapprehension that as an unmarried partner you will be properly provided for if the relationship breaks down". Miss Hurley is unlikely to starve but for other, less affluent, single mothers, this advice comes too late.