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Divorce and children: more questions answered

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October 18, 2021

Many of our readers have questions relating to their children following divorce or separation, and no wonder. Its’ a difficult topic and one that provokes emotion like few others.

Here Mark Christie, the head of the dedicated Children’s Department here at Stowe Family Law, answers more of the many questions about children that have brought new visitors to this blog in recent weeks.

If you have a question Mark has not answered, do leave a comment and we will try to help. Alternatively, make an appointment at one of our six offices in London, Yorkshire and the North West (contact details here).


What will the court consider when making a decision to move abroad with my child?

If the other parent will not consent to the proposed move abroad, either you would have to make an application to court for a Specific Issue Order under the Children Act 1989, or the other parent would have to make an application to the court for a ‘Prohibited Steps Order’ under the same legislation.

The court’s first consideration will be the welfare of your child and the decision will be made on the basis of what is in his or her best interests, rather than what you or the other parent wishes.

The Court must consider the ‘Welfare Checklist set out in the Children Act 1989. This consists of the following:

  1. The ascertainable wishes and feelings of the child concerned, considered in the light of his/her age and understanding.
  2. His/her physical, emotional and educational needs.
  3. The likely effect on him/her of any change in his/her circumstances.
  4. His/her age, sex, background and any characteristics of his/her which the Court considers relevant.
  5. Any harm which he/she has suffered or which he/she is at risk of suffering.
  6. How capable each parent (or other relevant person) is of meeting his/her needs.

The reasons for wanting to move abroad are likely to be relevant and the more preparation you do, the more your chances of succeeding will be increased.  You should be able to demonstrate that you have employment and financial independence, that your child’s education will be catered for and their housing needs suitably met. Arrangements for medical care arrangements will need to be in place.  The better thought out these details are, the better your prospects of success will be.


Is UK divorce always 50/50 split when no children are involved?

The Court will initially consider a 50/50 split if there are sufficient matrimonial assets to meet the needs of both parties, particularly in relation to housing needs and income.  If there are insufficient assets to meet needs on a 50/50 split then the court will more likely depart from the equality principle and deal with the matter on a needs basis –  to ensure needs are  met.  If a case is decided on a needs basis then the percentage split can be anywhere between 55 per cent and 100 per, depending upon the size of the matrimonial pot.


Can I take my ex-partner to court for child maintenance?

Generally speaking an application should be made to the Child Support Agency (CSA) for the assessment and payment of child maintenance.  The court has a limited jurisdiction to deal with child maintenance outside of the CSA.  For example, it can deal with child maintenance as part of a financial remedy application between spouses, or in cases where top up payments are needed (i.e. in very high income cases). The court also can deal with child maintenance to cover the cost of school fees and other educational expenses, as well as in relation to children with disabilities and those aged 19 or over who are in educational training.

Also under Schedule 1 of the Children Act 1989, an unmarried parent, a step parent, civil partner, guardian or anyone with a residence order can apply to the court for child maintenance, as well as a Property Adjustment Order for the benefit of the child.


Child maintenance when the parent is abroad

If the parent is residing abroad the CSA in the UK has no jurisdiction to deal with child maintenance and an application would need to be made through the English Court.


I got a letter from the Child Support Agency, but I’m not the father

If you believe you are not the father of the child then you need to inform the Child Support Agency. Arrangements will then be made for you to undergo a DNA Paternity Test, a very simple and non-invasive procedure.  If you are shown to be the father as a result of the test then the CSA will then go on to make an assessment of your maintenance liability.


Do I need to mention child maintenance payments on my Form E?

Yes. Paragraph 1.13 specifies inclusion of any child support maintenance calculations, maintenance orders or agreement regarding any children of the family.  It will also need to be mentioned separately as part of your income in Section 2.l9 if you are in receipt of the maintenance, or as income needs in Section 3.1.1 (i.e. your budget) if you are paying the maintenance.


Do wife and children have any rights over family home if husband is bankrupt?

On bankruptcy the bankrupt’s interest in the family home automatically vests in the ‘trustee in bankruptcy’.  The wife is still able to pursue a claim in respect of her share of the family home, for the benefit of herself and the children, but she will have to deal with the trustee in bankruptcy, who will want to protect the husband’s share for the benefit of his creditors.


If an ex remarries and stays home and her new husband pays the bills, is he subsidising her income in child support cases?

The support given to your ex by her new husband does not affect your obligation to pay maintenance for your children so far as the CSA is concerned.


If I pay CSA do I still need to pay for a house for my child?

This depends on whether or not you were married. If so, the housing needs of your child will need to be met as part of any financial settlement. If not, but you own a property your ex-partner might be able to make a claim against the property on behalf of the child, in addition to claiming child maintenance.

Mark Christie is the head of Stowe Family Law’s dedicated Childrens Department. Mark has specialised in family law for more than 35 years and provides clients with a wealth of practical experience.

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  1. Tulsa Divorce Lawyer Matt Ingham says:

    …a lot of valuable information shared here.

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