What if we can’t agree?
If you can’t agree on maintenance, you will normally have to apply to the CSA. But the CSA can only make maintenance rulings where it has ‘jurisdiction’. This is where all the following points apply to you:
• Your child is the child (by birth or adoption) of both parents. (This means that stepchildren can’t get support from their step-parents under the CSA.)
• You, your child and their other parent all normally live in the UK (or one of the parents lives abroad but works for a UK employer).
• The non-resident parent is not living in the same household as the child.• The child is under 16, or under 19 and in full-time education up to A-level standard.
What if I can’t use the CSA?
If the CSA doesn’t have jurisdiction, you will need to get a court to make an order about maintenance. The court can also make orders about other matters that the CSA can’t, including:
• school fees;
• meeting the particular needs of a disabled child;
• a ‘top-up’ order if the maintenance that the CSA can order reaches a (very high) ceiling; or
• varying an existing order (in certain circumstances).
If your child’s father or mother lives abroad, then there are ways of enforcing a maintenance order made in UK courts in some other countries. You will need a solicitor’s help to do this.What if my partner is not my child’s other parent?If your partner is not your child’s other parent, then you cannot use the CSA to make them pay maintenance. You can get a court order against them, if you can show that they have treated your children as their own. Otherwise you will have to pursue the child’s actual parent or rely on your partner’s goodwill.
How is CSA maintenance worked out?
The CSA works out maintenance by looking at the non-resident parent’s net (after-tax) earnings and the number of children they must support. If this figure is more than £200 a week, the non-resident parent can take off certain pension contributions and an allowance for any new children or stepchildren, and then pay:
• 15 per cent of their remaining income for one child;
• 20 per cent for two children; or
• 25 per cent for three or more children.
If the non-resident parent earns less than £200 a week then they must pay child support at a reduced rate.The amount of child support paid for the children also depends on the number of nights per week they spend with each parent. If you have children who live with you in a second family, this will be taken into account when child support is calculated.The CSA is only able to calculate maintenance on the net income of the non-resident parent up to £2,000 a week. If their income is higher than this, you may be able to apply to the court for a top-up order, which will give you more maintenance.
How do I apply to the CSA for maintenance?
You can apply online, by phone or by getting an application form from the CSA (see ‘Further help’ on page 19). After you have made your application, the CSA will write to your partner with another form that they have to fill in and return within four weeks. The CSA will then make a maintenance assessment and tell you both how much it should be.
Money and property The court has wide and flexible powers to make orders in divorce proceedings. It is only possible to give general information in this leaflet because each family is different. You should certainly take legal advice about your situation.
What orders can the court make in divorce proceedings? The court can make orders for:
• maintenance (regular payments) for your partner;
• maintenance for your children, but only in some circumstances – see ‘Supporting your children’ on page 11); • a lump sum for your partner (and for the children, if necessary);
• a ‘property adjustment’ or ‘transfer of property’ order (such as putting the house in one person’s name, or selling it); and
• giving you or your partner a share or claim on the other’s pension fund. This could involve having a share of the fund now so that you get a pension fund of your own, or having a payment out of it once your partner is drawing their pension.
How can I get a court order?
After divorce proceedings have been filed, either you or your partner can file a form at the court saying that you want to put in a financial application. Both of you will then have to fill in a long form (‘Form E’) with all your financial details. You have to exchange these with each other at the same time. The court will fix an appointment to check that all the evidence has been filed, and there will be a session at court to see if you can reach an agreement. Forms and information leaflets are available from the Court Service website.
Does our home have to be sold?
Not necessarily. There are several different ways of dealing with the home. For example, you can: • change the shares you both hold in it;
• agree to delay selling it until some point in the future;
• decide how the money from selling it can be divided; or
• decide who will pay the mortgage. If you cannot agree on any of these things, the judge will make an order.
How are the money issues worked out?
The court doesn’t use a formula to work out maintenance and other money issues, but it does take account of various things. These are:
• the income, earning capacity, property and other financial resources you each have (or would probably have);
• the needs and financial responsibilities you each have (or would probably have);
• the standard of living you enjoyed as a family; • your ages, any physical or mental disabilities, and the length of your marriage;
• the contributions that each of you has made or is likely to make to the welfare of the family (which includes looking after the home or caring for the family);
• your behaviour to each other, if the court thinks it would be unfair to ignore it (though in practice behaviour is rarely taken into account); and
• any benefits, such as pensions, that you might lose because of the divorce. A maintenance order can last for a fixed period or for as long as both of you are alive, and is on condition that the person it is paid to does not marry again.
Can an order be changed after it is made?
Either of you can apply to the court to alter a maintenance order if your situation changes. However, orders for lump sums or transfers of property cannot normally be altered once they are made. This applies to orders made by agreement as well as those decided by the judge, so it is important to make sure that you have thought about all the things that might happen in the future before you commit yourself to an agreement.
What should I do if I find that my partner is getting rid of property to stop me getting it in divorce proceedings?
Tell your solicitor urgently, because you can apply to a court for an order to stop the sale, and also get things back if they have already been sold. You have to prove that the sale is going to happen or has happened and that it will affect a final financial settlement. The court can freeze all your partner’s assets to protect your interests.
Making arrangements should you die
If you are separating or thinking about divorcing, you also need to talk to your solicitor about making or changing a will. Your partner is still your next of kin until the final decree of divorce, and they may inherit from you if you die and you have not made a will. If you have children, you also need to think about providing for them.
Do I need a guardian for my children?
If you and your partner both have parental responsibility (which is the normal situation), then if either of you dies, the other will legally have sole responsibility for the children. Most parents would agree that this is the best arrangement. But there may be reasons why you would not want this to happen. For example, your ex-partner may have lost touch with the children, or you may have had a dispute about care arrangements for the children.
In cases like this, you may feel that you would want another person (as well as your ex-partner) to have legal responsibility for your children, and you can put these wishes in your will or in a simple signed document. However, you would need to talk about this with your solicitor first. When deciding who will have care of the children after you die, the court does not have to accept your wishes, but it will take them into account.
Source of this article is at http://www.communitylegaladvice.org.uk/media/825/D2/leaflet03e.pdf
