How Do Adult Children Still Living At Home Impact on Your Divorce?

2nd June 2021

Do You Have A Boomerang In Your Home?

The ‘boomerang' generation is the generation of young adults returning to live at home or those not leaving the nest until their late thirties or early forties is becoming a common occurrence in divorces nowadays. And the pandemic is increasing this phenomenon due to job losses, furlough, and university closures.

Accordingly, I am being asked a lot more about whether adult children living at home have any rights in a divorce. Whilst the law makes a number of provisions to ensure children who are under the age of 18 continue to be cared for and provided for the following divorce, this is not the case when it comes to adult children. Unlike a tenant or lodger, there is unlikely to be any legal formalities in place, such as a tenancy agreement, to stipulate the rights of the young adult still living at home and so creating uncertainty

Divorce, when there are adult children involved can be a worrying and stressful time, especially if the family home needs to be sold. The adult child may become angry and feel they deserve to remain in the property, especially if they have contributed financially, or they are not able to financially rehouse themselves.

In law, the rights of an adult child are extremely limited. The law does not impose an ongoing obligation on parents to maintain their adult child, except in certain circumstances neither does the law require parents to continue to provide a home for them.

The law does not permit an adult child to obtain a legal interest in the family home on divorce but, in certain circumstances, the law may permit an adult child to obtain ongoing maintenance from a parent which may assist with their housing needs.

Ongoing financial support to an adult child

1. Under the Matrimonial Causes Act 1973, a child over the age of 16 can apply for maintenance from their parents provided a periodical payments order has already been made in their favour when they were a minor. This legislation only applies to children of married parents.

A periodical payments order is an order of the court stating the level of ongoing financial support that should be paid to the parent with whom the child resides and agreed at the time of separation or divorce. If there are no periodical payment orders in place, then an adult child cannot apply for maintenance under this Act

If a previous periodical payments order was in place, then an adult child can apply to the court.

If successful, this would enable the child to obtain maintenance from their parent by way of periodical payments or a lump sum. These orders are rare and tend to be made where the child is continuing in education or undergoing training for a trade or profession. The court also has the power to grant maintenance in special circumstances. There is no clear definition of special circumstances, but previous cases have usually involved an adult child with a disability. The court tends to be sympathetic to cases where that disability means they will have an ongoing dependency or requirement for expensive medical equipment, treatments, and employment of specialist support.

2. Under the Children Act 1989

This Act may provide an alternative route, especially when the parents have not been married. There must not have been a maintenance order in place while the child was under 16. If there was then, strangely, an adult cannot now apply

It enables an adult child to seek maintenance from their parents if they will be or are in further education or training or, if there are special circumstances to justify making an order, such as disability. This financial support can be for periodic payments or a lump sum. Unlike for minor children, it does not provide rights or interests for the adult child in the family home.

What considerations will the court take into account?

If the adult child is entitled to apply, then the court will consider the following:  

i. the income and earning capacity of each parent;

ii. the financial needs and obligations of each parent;

iii. the child's financial needs and their own ability to generate an income now and in the future;

iv. any physical or mental disability of the child; and

v. any education or training, they intend to undertake. Both parents and the adult child will need to provide full disclosure of their assets and income. The court is not limited in the amount it can award, which will be proportionate to the needs of the adult child.

Can an adult child ever claim an interest in the family home?

It is possible for an adult child to bring a claim stating they have a right over the family home. This is a civil action in which the adult child claims that, although they are not a legal owner of a property, it is only fair and just because of assurances they were given and actions they took that they could stake a legal interest in the property.

This type of situation can arise in a number of ways and is case specific. For instance, it may involve a situation where there is a family-run farm or other business where the home is tied to the business. A child may have given up the opportunity of gainful employment to work for a low wage on the farm after an assurance that the farm would be theirs one day. They may have made several sacrifices and even investments in the farm business on the basis of promises made to them. In such a case the parents making those promises may be found unable to deny that an interest in favour of their adult child exists.

The adult child may also be able to bring a claim if they have invested heavily in the house on the assurance it would be theirs. They may have extensively renovated the house, built an extension or annex, or modernised electrics and heating at substantial cost.

Cases in equity can be costly and difficult to quantify. It is important that early advice is sought in order to avoid a lengthy legal dispute.

Usually, the civil action brought by the child will be joined with the parent's divorce case if one is ongoing

Conclusion

While adult children may have few rights for financial maintenance from their parents, it is no doubt a stressful time for all the family when parents go through a divorce. Adult children may even be burdened with more of their parent's worries and feelings as they are not naturally shielded by their parents in the same way as minor children are.

If an adult child has invested in your family home, then recognising this at an early stage can save significantly in legal costs. It is important to open dialogue early and ensure adult children are aware of any potential house sale in order that they can make their own arrangements in good time. After all, maintaining a good relationship with your children is extremely important.

If you have an adult child still living at home and are contemplating separation and/or divorce and want to know what rights the adult child may potentially have and/or obligations you may have financially towards your adult child then arrange a chat with me 

Sarah 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should always be sought about your specific circumstances.

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