In the era of blended families, what constitutes a 'child of the family'?

Tom Gilchrist


The consequences of a divorce or an inheritance will probably have the greatest financial impact in a person’s life. There are multiple factors that can affect a person’s decisions in relation to divorce settlements, how to draft their will or whether to go to court. One of these factors is children.


Both the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975 make references to a ‘child of the family’ in their text. Biological and adopted children are clearly included but what does a ‘child of the family’ actually mean in reality? What kind of relationships and people are caught by this wording?


Matrimonial Causes Act 1973


When deciding on how to exercise its powers, the first consideration of the court is given to the welfare of a minor of any ‘child of the family’ who has not attained the age of eighteen. ‘Child of the family’ is defined as a child of both of the parties or any other child (not placed by with them as foster carers by a local authority) who has been treated by both the parties as a child of their family. Adult children can still be considered by the court, but do not have the same priority as minor children.


Inheritance (Provision for Family and Dependants) Act 1975


Under this Act, a ‘child of the family’ can make a claim against a deceased person’s estate if they have not been sufficiently provided for in their will. They must be a person who, in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family.


Case law


We need to look at the case law to clarify what ‘treated’ as a child of the family means. In D v D (Child of the Family) (1981) 2 FLR 93, the child lived with the grandparents and stayed with the mother and stepfather about 50 to 60 days per year. The child had a bedroom that she always used at the home of the mother and stepfather and also kept toys there. However, it was held that she was not a child of the family as between the mother and stepfather. The legal test in the case was:


The independent outside observer has to look at the situation and say: “Does the evidence show that the child was treated as a member of the family.”

The case of M v M (1981) 2 FLR 39 had a curious set of facts. After separation but before divorce, the wife became pregnant with another man’s child. The maternal grandmother assumed the child was the husband’s and he did not repudiate it. The parties lived separate lives, but the husband sometimes visited the wife as a friend and also occasionally gave the child presents, signed ‘Dad’. It was found that the child was not a child of the family. While the husband had treated the child as his natural child for certain purposes, his conduct did not go far enough to constitute treating them as a child of the family. In any event, the ‘family’ had ended before the child was born; there was no family for the child be to a part of as the parties had separated before the child was born.


It has been argued that there is no ‘family’ for the child to be a part of. In W v W [1984] FLR 796, the parties starting dating while the woman was pregnant to another man. They married and the husband set up a joint account for the couple and a bank account for the child. The husband was a soldier and briefly visited when the wife gave birth. He then returned to his unit. A few months later, he spent two weeks’ leave with the wife and child, before again returning to his unit. A month later, the husband wrote to the wife saying he wanted a divorce. The court found that the ‘family’ came into existence upon marriage and that the child was a child of the family but found that the husband had assumed minimal financial responsibility and therefore should not have any ongoing financial responsibility for the child.


In Teeling v Teeling [1984] FLR 808, CA, the husband and wife had two biological children but then separated. The wife became pregnant by another man during separation. Soon after the birth, the wife returned to the matrimonial home. The husband offered to have his name put on the birth certificate and also paid for various child expenses. The wife left again him after six months. This was enough for the child to be considered a child of the family. However, the court found the husband had assumed minimal financial responsibility for the child.


In Carron v Carron [1984] FLR 805, CA, the wife’s children by other men were still children

of the family, despite there being a pre-existing maintenance order against the birth fathers in favour of the children. They had lived with the stepfather for four years and clearly been treated as children of the family. Financial support for the child from others did not in of itself disqualify them as a child of the family.


Timing can be a crucial factor. In A v A (Family: Unborn Child) [1974] Fam 6, a man married a pregnant woman, believing that the child was his. After the marriage but before the birth, the wife left the husband. It was held that a child cannot be treated as a child of the family before they are born.


In Re A (Child of the family) [1998] 1 FLR 347, the grandfather argued that the child in question had been treated as a grandchild and not a ‘child of the family’. He was not successful. In the case, the grandparents had assumed primary responsibility for the grandchild for the foreseeable future. The child called the grandparents ‘mum’ and ‘dad’ (while other grandchildren referred to them as ‘grandpa’ and ‘grandma’), the grandparents made important decisions about the child without referring to the mother and they also paid for the child’s expenses without seeking recompense from the mother.


One of the most significant cases under the Inheritance (Provision for Family and Dependants) Act 1975 is Re Leach [1985] 2 All ER 754. In this case, the applicant’s father remarried when she was 32 years old. She had a very close relationship with her new stepmother. It was found on the facts that the relationship got even close after the applicant’s father died. It was found that the stepmother did not treat the applicant with only kindness but had assumed the position of a parent with its attendant responsibilities and privileges. The applicant was found to be a child of the family and her claim against the estate was successful.


Discussion


While the statutory definitions are slightly circular, it appears from the case law that there are various factors that will be taken into consideration. These likely factors are:


  • Who the child lives with;

  • The time the child spends with the person e.g. emergency or temporary care as opposed to long term care;

  • The financial assistance the person gives to the child e.g. school fees, day-to-day expenses, holidays etc.;

  • Whether the person has been making important life decisions for the child;

  • Whether the biological parent(s) have abdicated primary responsibility;

  • If the person treats the child differently to biological or adoptive children;

  • How the child treats the person, e.g. calls them ‘mum’ or ‘dad’;


This will not be an exhaustive list. It seems unlikely that all factors would need to be present. In return, it may be unlikely that one factor in favour being present would make a child a ‘child of the family’. It seems a court would take a look at the factors, take a holistic view of the evidence and put itself it the shoes of the objective bystander.


It is also apparent that intention does not matter. It will not matter if a party has not ‘accepted’ the child in their mind. The legislation uses the word ‘treated’ and the case law makes it clear that it is the actions of the parties that count.


Conclusion


With more blended families in society, it seems more likely that there will be situations where a non-biological or non-adopted children will be found to be a ‘child of the family’. This may be despite one’s intentions or understanding. Even adult children can become a child of the family and be taken into account during divorce or make a claim against a deceased person’s estate.


However, the court will consider the extent that a person has assumed responsibility for the maintenance of the child of the family under s.25(4) of the Matrimonial Causes Act 1975. Therefore, it may be that the real dispute in cases of blended families during divorce will be the quantum of any final order as opposed to finding that a child is a child of the family.


On a practical note, this may mean that a spouse will argue that they need greater share of matrimonial assets or maintenance as their needs are greater due to them looking after a child of the family. A child of the family may also end up making a successful claim against the estate of a deceased person if the child was left out of their will.


Tom Gilchrist is a barrister in chambers with a busy practice in family law. Tom specialises in financial remedies, co-habitation, wills, and trusts. To instruct Tom, you can contact our clerks at clerks@2drj.com or on 0207 936 2613.